Andhra Pradesh High Court - Amravati

Gurram Naganna vs Munipati Prabhakar on 27 July, 2022

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

       CIVIL MISCELLANEOUS APPEAL NO.30 of 2022

JUDGMENT:

This Civil Miscellaneous Appeal under Order XLIII Rule 1

of the Code of Civil Procedure, 1908 (for short „CPC‟) is filed by

the appellant/plaintiff against the order, dated 16.12.2021

passed in I.A.No.145 of 2021 in A.S.No.51 of 2018 on the file of

learned Principal District Judge, Kurnool, whereby the petition

filed by the appellant/plaintiff under Order XLI Rule 19 and

Section 151 of CPC seeking to set aside dismissed for default

order, dated 10.12.2019 passed in A.S.No.51 of 2018 was

dismissed.

The brief facts of the case are that ;

2. The appellant/plaintiff filed O.S.No.192 of 2008 on the file

of learned Senior Civil Judge, Kurnool against the

respondents/defendants for perpetual injunction restraining the

defendants, their men, etc. from creating or opening any

apertures or openings like Doors Windows, etc in their Northern

wall i.e. BC wall of the plaint plan and for mandatory injunction

directing the defendants to close down the apertures or

openings, if any opened even during the pendency of the above

suit and if they fail to do so, to get them closed through Court

process.

3. The suit was dismissed on contest, against which plaintiff

filed A.S.No.51 of 2018. Appeal was adjourned to 10.12.2019

for hearing on costs of Rs.200/-. Learned counsel for the

appellant/plaintiff paid the costs and filed memo to that effect.

However, during call work, though learned counsel sought

further time for advancing arguments, the appeal was kept

aside. Since there was no representation on behalf of the

appellant/plaintiff when the matter was called again, the lower

appellate Court dismissed the appeal for non-prosecution on

10.12.2019.

4. Immediately learned counsel for the appellant/plaintiff

filed petition under Order XLI Rule 19 and Section 151 of CPC

to set aside the default order and to restore the appeal. Though

notices were sent to the respondents/defendants, they did not

file counter. The lower appellate Court by order, dated

16.11.2021, dismissed the petition against which the present

appeal is preferred.

5. Heard Sri P. Rajasekhar, learned counsel for the appellant

and Sri Sai Gangadhar Chamarty, learned counsel for the

respondents.

6. Learned counsel for the appellant/plaintiff submits that

the suit is filed for perpetual injunction and also mandatory

injunction. He submits that immediately after dismissing the

appeal, petition was filed for restoration of the appeal and no

counter was filed by the respondents/defendants. He further

submits that the lower appellate Court ought not have

dismissed the petition and ought not have denied the statutory

right of appeal on technicalities when substantial rights of

parties are involved in the matter. Hence, prays to allow this

appeal.

7. On the other hand, learned counsel for the

defendants/respondents supports the order of lower appellate

Court and submits that the order impugned is a well considered

one, as such interference of this Court is not warranted.

8. The appellant being plaintiff filed suit for perpetual as well

as mandatory injunction. The said suit was dismissed on

merits. Against the judgment of the trial Court the

appellant/plaintiff preferred A.S.No.51 of 2018. As learned

counsel for the appellant/plaintiff failed to appear on that day

though the matter was adjourned to said date on costs, lower

appellate Court passed dismissed for default order on

10.12.2019. Petition to set aside the default order was filed

immediately without any delay.

9. A perusal of the accompanying affidavit filed in I.A.No.145

of 2021 indicates that learned counsel for the appellant/plaintiff

mentioned that costs were paid, however, learned counsel for

the appellant/plaintiff could not advance arguments on that

day.

10. While considering point for consideration, lower appellate

Court observed that even on earlier occasions appeal was

adjourned and it was also pointed out with regard to non-

payment of costs on the day when the matter was dismissed.

11. It is not out of place to mention here that in appeals

normally parties will not appear before the Court and it is the

counsel who pursue the cases. It is settled law that for the fault

on the part of the Advocate, client should not suffer.

12. In Rafiq and another v. Munshilal and another1, the

Hon‟ble Apex Court observed as under:

"... The party may be a villager or may belong to a rural area and may have no knowledge of the Court‟s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing the appeal, personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everthing in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. ....... The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall the order. ..."

AIR 1981 SC 1400

13. In Gutti Kumari Lakshmi v. Boddu Sanjeeva Rao 2, this

Court held as under:

"... in the considered opinion of this Court the defendants should not suffer for the mistake committed by the advocate as the defendants were vigilant in filing the appeal. ..."

14. No doubt, in the case on hand, going by the affidavit,

which is filed in support of the petition, it was averred that the

appeal was posted on 10.12.2019 on costs for hearing the

appeal and on that day counsel paid costs and filed memo into

the Court. However, learned counsel sought for further time

during call work, as he did not prepare himself for submitting

arguments. However, the appeal bundle was kept aside during

call work and later it was dismissed for default.

15. The lower appellate Court, in its order recorded a finding

with regard to non-payment of costs as averred in the affidavit

and payment of costs at later point of time. As observed by the

Hon‟ble Apex Court, it being appeal, learned counsel is expected