Duvvi Chinna Appala Narasayyaa vs Meesala Appala Naidu Died As Per ...
2023 Latest Caselaw 2731 AP

         THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CIVIL MISCELLANEOUS APPEAL No.374 of 2022

JUDGMENT:

Plaintiff in the suit has come up with this Civil

Miscellaneous Appeal under Order XLIII Rule 1 CPC as he failed

to convince the Court about his absence on the appointed day

which resulted in dismissal of his suit for default and his prayer

for restoration was denied.

2. Respondent No.1 was the sole defendant before the

learned trial Court and it seems he died during the pendency of

these proceedings here and respondent Nos.2 to 4 have been

brought on record as legal representatives.

3. Learned counsel on both sides submitted arguments.

Learned counsel for appellant cited Kamla bai v. Harishankar

arora1. On considering the submissions on both sides and on

perusal of the record, the point that falls for consideration is:

Did the appellant show sufficient cause for his absence

before the learned trial Court on 22.12.2016, yet the learned

trial Court failed to consider the same and reached to improper

conclusions which are against law.

2010 15 SCC 454

Dr. VRKS, J C.M.A.No.374 of 2022

Point answered

4. O.S.No.201 of 2010 is a suit filed for specific performance

of an agreement for sale with an alternative relief of refund of

money and for costs and such other reliefs. It was based on an

agreement for sale dated 02.03.2006 concerning AC 0.90 cents

of land in survey No.260/1 at Anandapuram Village. Defendant

made appearance and filed written statement. Learned VII

Additional District Judge, Visakhapatnam settled the issues and

put the suit for trial for recording of evidence. It is stated by

both sides that the trial Court commenced the trial and during

the course of evidence, plaintiff as PW.1, the subject matter

agreement for sale came for consideration with reference to its

stamp duty and penalty and in that regard, by the order of the

trial Court, the document was forwarded to District Registrar for

evaluation and calculation and collection of stamp duty and

penalty. It is undisputed that the said document was not

received back by the trial Court which forwarded the document.

While so on 22.12.2016, on finding absence of the

plaintiff/PW.1, the learned trial Court dismissed the suit for

default. Seeking restoration of it, an application under Order IX

Rule 9 CPC was filed by the plaintiff as per I.A.No.1454 of 2017

on 05.01.2017 which was well within the 30 days time. Notice

Dr. VRKS, J C.M.A.No.374 of 2022

in that application was taken out to respondent/defendant but

the respondent did not file any counter and did not participate

in the enquiry. After hearing the learned counsel for

plaintiff/petitioner therein and after considering the material on

record, by an order dated 04.08.2022, learned trial court

dismissed the said application. Aggrieved of it, the plaintiff has

come up with this Civil Miscellaneous Appeal.

5. A perusal of the sworn affidavit of the appellant filed in

support of his I.A.No.1454 of 2017 do indicate the

correspondence that was there between plaintiff and the District

Registrar with reference to the exact amount of stamp duty and

exact amount of penalty and the method and manner in which

the payments were to be remitted. The sworn affidavit further

indicates that on 22.12.2016, when the trial Court had the suit

on bench, the matter was represented on behalf of the plaintiff,

explaining the correspondence between the plaintiff and the

District Registrar and on hearing those submissions, the

learned trial Court allegedly kept aside the case bundle with a

view to verify the correspondence and take a decision. According

to the sworn affidavit, during the course of the day, the matter

was once again called and it found no representation. The

learned trial Court dismissed the suit for default. The affidavit

Dr. VRKS, J C.M.A.No.374 of 2022

narrates that the plaintiff/appellant during that day went to

Bheemunipatnam and therefore he could not attend the Court

when it was dismissed. It is undisputed before this Court that

Order IX Rule 9 CPC permits the Court to scrutinise the facts

confined to the date on which the matter was called and the

cause of non-appearance of the party. If the cause shown is

taken to be sufficient then the application is to be allowed. It is

significant to note that the prior conduct or subsequent conduct

of a party to the suit in these type of cases do not merit for

consideration. That has been the law laid down by the Hon'ble

Supreme Court of India, in the ruling that is cited by the

learned counsel and mentioned in the earlier parts of this order.

The fact is that on 22.12.2016 there was a representation at the

bench for the plaintiff and the fact that during the course of the

day, the plaintiff left for Bheemunipatnam, are the facts and

they are not disputed by any counter affidavit on part of

respondent/defendant who must have been present in the

Court on that day. Therefore, those facts cannot be brushed

aside easily. In the impugned judgment, the learned trial Court

mentioned that the docket proceedings do not indicate about

the representation being made on behalf of the plaintiff and

about passing over of the matter. It is a matter of common

Dr. VRKS, J C.M.A.No.374 of 2022

knowledge that when a matter is requested to be passed over for

a while and if it is considered, it is simply passed over without

any minutes being recorded on the docket sheet. Therefore, the

observations of the learned trial Court that its minutes do not

indicate that the matter was passed over seems to me too

pedantic. In fact, the impugned order does not really indicate

the time at which it chose to dismiss the suit for default. Since

there is no mentioning of time of dismissal on that day, it

should be reasonable to accept the undisputed factual

submissions given out by a party on his sworn affidavit. Instead

of focusing to find out whether the cause shown for the absence

on 22.12.2016 was sufficient or not, the entire order of the

learned trial Court indicates the various dilatory tactics that

were adopted by the plaintiff in the suit and with reference to

non-payment of stamp duty and penalty. In the considered

opinion of this Court, even if all those facts that are enumerated

in the impugned order are correct, they did not by themselves

have any bearing when an application under Order IX Rule 9

CPC was for consideration. At the risk of repetition, it is to be

noted that learned trial Court having received an agreement for

sale from the plaintiff as part of the case record and having

forwarded the document to the District Registrar, it was

Dr. VRKS, J C.M.A.No.374 of 2022

expected on part of the trial Court to secure it back and then

proceed further with the trial. It may be mentioned that when

the document was forwarded, it was the evidence of PW.1 that

was in progress. It was not possible either for the party or for

the Court to take up the suit for recording of evidence without

securing back such a document.

6. It is in these circumstances, this Court records that the

learned trial Court failed to exercise jurisdiction in the manner

that is expected by Order IX Rule 9 CPC. The cause assigned by

the appellant for his absence stood demonstrated by the very

facts that are available on record. Under these facts and

circumstances, the cause assigned is undoubtedly a sufficient

cause. Therefore, the learned trial Court ought to have allowed

his application. The order passed by the learned trial Court

cannot be supported and therefore it is to be set aside.

Point answered in favour of the appellant.

7. In the result, this Civil Miscellaneous Appeal is allowed.

The order dated 04.08.2022 of learned VII Additional District

Judge, Visakapatnam in I.A.No.1454 of 2017 in O.S.No.201 of

2010 is set aside. As a consequence I.A.No.1454 of 2017 is

allowed and as a result, O.S.No.210 of 2010 stands restored.

Dr. VRKS, J C.M.A.No.374 of 2022

The learned trial Court shall take up the suit and proceed

further in accordance with law. Considering the fact, that the

matter in dispute pertains to an agreement for sale dated

02.03.2006 and several years elapsed and since both parties are

before this Court, this Court directs both parties to make their

appearance before the learned trial Court on 15.06.2023 as that

obviates any further notice to parties. Both parties shall abide

by the timelines to be prescribed by the learned trial Court and

participate in the trial Court proceedings and have the suit

disposed of as expeditiously as possible. There shall be no order

as to costs.

8. As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 02.05.2023 Cc by next week B/o DVS

Dr. VRKS, J C.M.A.No.374 of 2022

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL MISCELLANEOUS APPEAL No.374 of 2022

Date: 02.05.2023

DVS