K. Jaya Harsha vs K.Siva Prakash Prakash Rao,
2023 Latest Caselaw 5093 AP

         THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                      C.M.A.No.300 OF 2022

JUDGMENT:

The Appellants herein are the plaintiffs before both the Court

below filed the present Civil Miscellaneous Appeal before this

Court.

2. Aggrieved by the order dated 27.06.2022 in I.A.No.222 of

2014 in O.S.No.38 of 2008 on the file of the Court of the Judge,

Family Court, Kurnool (in short 'the court below).

3. Initially the plaintiffs filed the suit for a suit for specific

performance of agreement of sale dated 06.03.2006 in respect of

suit schedule property. In the said suit, an application vide I.A.No.

222 of 2014 has been filed under Order IX, Rule 9 CPC seeking to

restore the suit, which was dismissed for default on 05.06.2014

and permit them to proceed with the suit. The appellants

contended that his counsel has gone to Chennai for treatment and

that they filed I.A.No. 109 of 2014 seeking adjournment of the suit

for 15 days, which was dismissed and consequently suit was also

dismissed for non-commencement of trial on 05.06.2014. Therefore

the present impugned application came to be filed before the court

below.

4. The respondents filed counter before the court below and

mainly contended that the suit was dismissed for default, not for

the absence of the Advocate, but for the absence of the appellants.

The appellants are not ready from the beginning. This Court also

earlier directed to dispose of the suit before the end of 2011 vide

C.R.P.No.4668 of 2010 on 09.03.2011 and even after three years of

the said orders, there was no progress in the suit and disobeyed

the orders of this Court. Therefore the suit cannot be restored.

5. The court below after hearing on both sides, holding that

the counsel for the appellants gone to Chennai for medical

treatment is not a ground to seek adjournment and dismissed the

application. Assailing the said order, the present C.M.A came to be

filed.

6. Heard Sri Narasimha Rao Gudiseva, learned counsel for

the appellants and Sri J.Janaki Rami Reddy, learned counsel for

the respondents.

7. During hearing learned counsel for the appellants would

contend that the court below simply dismissed the application,

though an application has been filed to seek adjournment on the

ground that their counsel, who is senior has suffering old age

ailment and taking treatment at Chennai for his ailment, but the

court below. The court below ought to have allowed the application

by restoring the suit, as respondent/ defendant No.13 being one of

the coparceners of the family got herself impleaded in the suit as

defendant No.13 and filed written statement along with her

counter-claim in the suit on 12.04.2011 praying for partition of the

suit schedule property and for allotment of her share in accordance

with law, due to said circumstances the trial has not been

commenced, but the court below has found fault with the

appellants alone, by leaving the defendants role in dragging the

suit proceedings. Therefore the C.M.A is liable to be allowed.

8. In support of the contention of the appellants, learned

counsel for the appellants placed on record the decision of this

Court in "K. Sudhakar Reddy v. Ind. Bank Housing Limited"1,

wherein it was held as follows:

"18. IN Somar Bhuiya v. Kapil Kumar it was held where an application under Order 9, Rule 4 of the C.P. Code for restoration of a suit dismissed for default, was itself dismissed for default, and the plaintiff applied under Section 151 of the C.P. Code for restoration of the application neither Article 122 nor any other Article of the Limitation Act applies to the case. It was further held Article 122 manifests that an application under Section 151 of the Civil Procedure Code for setting aside an order of dismissal for default an application filed under Order IX Rule 9 for restoration of suit is not covered by Article 122 of the Limitation Act. The provisions of Article 122 being very specific, it cannot be construed to apply to an application filed under

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Section 151 of the Code for exercising the inherent jurisdiction of the Court for restoration of such an application.

In "Rajeshwar Singh v. Dashrath Rai"2 wherein the High

Court of Jharkahnd, held as follows:

"5. On perusal of record, it is evident that the Title Suit No. 134 of 1987 was dismissed for default and thereafter Misc. Case No. 13 of 1993 was filed for setting aside the said dismissal and for restoration of the suit, but the said miscellaneous case was also dismissed for default on 11-10-1993. The petitioner, in view of the provision contained in Section 141 read with Order IX Rule 9 of the Code of Civil Procedure, could have prayed for restoration of the said miscellaneous case. The Court could have restored the case even in exercise of its Jurisdiction under Section 151 of the Code of Civil Procedure, but in view of the provision, as contained in Rule 1(c) of Order XLIII even an appeal against such order is not barred. Rule 1(c) of Order XLIII runs as follows:

1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely:

(c) an order under Rule 9 of Order IX rejecting an application (in a ease open to appeal) for an order to set aside the dismissal of a suit:

In "Pandurang Gopal Mhatre and Others v. M/s

Veekaylal Investment Company Pvt., Ltd.,3 wherein the High

Court of Bombay held as follows:

"2. The Learned Counsel appearing on behalf of the Respondent No.1 would contend that after the petition was

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2016 SCC OnLine Bom 14837

dismissed for non prosecution, third party rights have been created, as also the Suit filed by the petitioner in the City Civil Court has been dismissed. However, the said facts would be relevant whilst adjudicating the above writ petition on merits, on restoration.

3. In view of the reasons mentioned in the above Civil Application, case for exercise of discretion in favour of the Petitioners is made out. This is in view of the dictum that a party should not be made to suffer on account of the default if any of the Advocate. Hence applying the said dictum, the above Civil Application is allowed. resultantly the Writ Petition is restored to file....."

9. Whereas, learned counsel for the respondents mainly

contended that the appellants from the beginning not ready in the

suit and gaining time. Inspite of conditional orders also, the

appellants on some excuse or other getting adjournments without

proceed with the trial. It is further contended that this Court has

already directed the court below to dispose of the suit within time

frame as per orders vide C.R.P.No.4668 of 2010, dated 09.03.2011.

So far after three years of the said orders, there was no progress in

the suit. Therefore it is utter violation of the order of this Court.

The appellants with an intention to drag on the suit proceedings,

the impugned application have been filed. Therefore the court

below was rightly dismissed the application. Therefore the C.M.A is

not maintainable and same is liable to be dismissed.

10. Perused the record.

11. The court below has granted several adjournments with a

direction to commence the trial. Therefore application has been

filed seeking adjournment, which was dismissed as the condition is

not complied and suit is also dismissed for default. There was a

direction of this Court in C.R.P.No.4668 of 2010, dated 09.03.2011

to dispose of the suit as expeditiously and this Court also further

extended the time for two months as per Crl.M.P.No.3150 of 2012,

dated 12.06.2011. Again this Court extended time for six months

time to dispose of the suit.

12. The court below held that once the orders in the

application under order XVII Rule 1 and 2 CPC becomes final as

the appellants have not preferred any appeal or revision against

the order, but only filed petition under Order IX Rule 9 CPC for

restoration of the suit. Further the court below pointed out that

inspite of directions from this Court, the appellants have not

co-operated with the court in disposing the suit. The suit of the

year 2008 and dragged the proceedings till 2014. Therefore, this

Court finds that there is abnormal delay appeared and the

appellants have not evincing interest to commence the trial, though

they filed a suit in the year 2008, since then the appellants

dodging the matter as per record, though this court passed an

order to dispose of the suit within time frame and further also

extended time twice for disposal of the suit, even though the

appellants are not taking steps so far. In view of several conditional

orders passed by the court below and also time frame fixed by this

court in the revision petition also, the appellants have not come

forward to dispose of the suit. Later an application has been filed

to get adjournment on the ground of ill health of their counsel,

even after long lapse of time is highly not permissible.

13. However, in a case of "Rafiq and another vs. Munshilal

and another"4, wherein the Apex court held as follows:

"an innocent party cannot be suffered to injustice merely because his chosen Advocate defaulted."

14. Under our present adversary legal system where the

parties generally appear through their advocates, the obligation of

the parties is to select his advocate, brief him, pay the fees

demanded by him and then trust the learned advocate to do the

rest of the things. 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 the

hearing of the case, the personal appearance of the party is not

only not required but hardly useful. Therefore, the party having

AIR 1981 (SC) 1400

done everything in his power to effectively participate in the

proceedings can rest assured that he has neither to go to the High

Court to inquire as to what is happening in the High Court with

regard to his case 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.

15. A practice has grown up in the High Court amongst the

lawyers that they remain absent when they do not like a particular

Bench. May be he is better informed on this matter. Ignorance in

this behalf is our bliss. Even if I do not put our seal of imprimatur

on the alleged practice by dismissing this matter which may

discourage such a tendency, would it not bring justice delivery

system into disrepute? What is the fault of the party who having

done everything in his power and expected of him would suffer

because of the default of his advocate. If I reject this petition, the

only one who would suffer would not be the lawyer who did not

appear but the party whose interest he represented. The problem

that agitates us is whether it is proper that the party should suffer

for the inaction, deliberate omission, or misdemeanour of his

agent. The answer obviously is in the negative. May be that the

learned advocate absented himself deliberately or intentionally. I

have no material for ascertaining that aspect of the matter. I say

nothing more on that aspect of the matter. However, I cannot be a

party to an innocent party suffering injustice merely because his

chosen advocate defaulted. In view of the above, the party is not

responsible because he has done whatever was possible and was in

his power to do, the costs should be recovered from the advocate

who absented himself.

16. Following the decisions cited supra and also to meet the

ends of justice, it is necessary to restore the suit. Therefore, this

court is inclined to allow the Civil Miscellaneous Appeal on

payment of costs of Rs. 5,000/-, (Rupees five thousand only) to be

paid by the appellants to the credit of suit in O.S.No.38 of 2008 on

the file of the court below, within two (02) weeks from the date of

receipt of a copy of this order, failing which this order stands

cancelled automatically, without further reference to this Court.

Further, the impugned order of the court below, dated 27.06.2022

is hereby set aside, while directing the court below to dispose of the

suit on merits, in accordance with law within six (06) months from

the date of restoration of the suit.

17. With the above direction, this Civil Miscellaneous Appeal

is allowed. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

___________________________ DR.K. MANMADHA RAO, J

Date: 18.10.2023

KK

THE HON'BLE DR. JUSTICE K. MANMADHA RAO

C.M.A.No.300 OF 2022

Date: 18.10.2023

KK