Andhra Pradesh High Court - Amravati
The vs Unknown on 8 September, 2023
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.A.No.323 OF 2022
JUDGMENT:
The Appellants herein are the petitioners/ plaintiffs before
both the Courts below filed the present Civil Miscellaneous Appeal
before this Court.
2. Aggrieved by the order dated 12.04.2022 in I.A.No.96 of
2019 in O.S.No.23 of 2006 on the file of the Court of IV Additional
District Judge and Sessions Judge-cum-Special Judge for Trial of
Cases under SCs and STs, Vizianagaram, which is filed under
Order IX, rule 9 of CPC to set aside the order of dismissed for
default dated 01.12.2014 and to restore the suit permitting them to
prosecute the suit.
3. Initially the plaintiffs filed the suit for declaration of title
and possession of plaint schedule property and also for grant of
permanent injunction against the defendants. As the counsel for
the appellants not represented the trial court dismissed the suit for
default on 01.12.2014. Therefore the appellants filed application
for restoration of the suit by setting aside the order dated
01.12.2014. The same was dismissed with costs. Assailing the said
order, the present C.M.A came to be filed.
4. Heard Sri Saripalli Subrahmanyam, learned counsel for
the appellants and Sri Venkateswara Rao Gudapati, learned
counsel for the 2nd respondent.
5. During hearing learned counsel for the appellants would
contend that the learned counsel appearing for the appellants
before the court below has underwent bypass surgery on
12.12.2014. The suit was posted for cross examination of PW-1.
Therefore there is no wilful intention to PW-1 in non-attending the
court, but due to unaware of the posting date. Therefore there was
no representation in the suit. As such, the lower court erroneously
held in its order that the suit is 16 years old suit cannot be
restored is against law and not a fair disposal of the litigation on
merits. It is further contended that the appellants are always ready
and willing to proceed with the trial after satisfying the same
reasons condoned the delay as per orders dated 30.12.2018 in
I.A.No.966 of 2018 after hearing Mr. J. Bheemasena Rao, Advocate
and the trial court did not raise any objection during hearing, as it
presumes that the trial court permitted their counsel to argue the
petition. As such, ordering dismissal of the petition is
unsustainable as per law or on facts. Therefore, requested to allow
the C.M.A.
6. Whereas, learned counsel for the respondent mainly
contended that as per law the duty casted upon the party to know
the stage of the suit and diligently prosecute his case. The
petitioner is not entitled to take advantage of his own negligence.
The suit was dismissed for default not only for non appearance of
the plaintiffs, but also for non payment of costs. The appellants
filed Chief Affidavit of PW-1 and commenced trial, but he did not
turn up for cross examination. The trial court granted time on
imposing costs, but costs are not being paid, the suit got dismissed
for default for non payment of costs. It is further contended that
the plaintiffs suppressing the material facts and dodging the
matter for untold reasons. Therefore the allegations mentioned in
the affidavit are incorrect and same cannot be looked into, as the
petitioners filed the application only to fill up the latches and to get
the default order dated 01.12.2014 set aside. Therefore, requested
to dismiss the appeal.
7. Perused the record.
8. It is the contention of the appellants that their counsel
underwent bypass surgery and that he was not able to attend the
courts. As per averments in the affidavit of the appellants would
show that Sri D.B.V.Satry had authorized Sri K. Srihari Sarma,
Advocate to attend on his behalf for all matters pending before the
courts, as such if the appellants were diligent to pursue the case,
there would have been proper representation in the suit, which
would not have been dismissed. The appellants have commenced
trial by filing PW-1 and subsequently disappeared for cross
examination, despite conditional order of the trial court, which
failed to comply with by the appellants, the trial court dismissed
the suit for default.
9. As could be seen from the impugned order of the trial
court that the conduct of the appellants show that when the
petition was returned with queries, it took 467 days for
representation. But the court below condoned the delay vide
I.A.No.966 of 2018, dated 30.12.2018 and the I.A.No.96 of 2019
got numbered. Since the suit is filed in the year 2006 i.e 17 years
till date, it is incorrect to consider the averments of the appellants
without any documentary proof. Any person cannot sit quite for a
long time, though they filed suit for grant of permanent injunction
in respect of the plaint schedule property by saying lame excuses.
Further they pleaded that there was a threat from the defendants,
in view of the same, the plaintiffs who are appellants have shown
interest to proceed with the trial, but they failed to do so and
thrown blame on their Advocate, which is not tenable and
believable. Therefore there is no force in the argument of learned
counsel for the appellants.
10. Under these circumstances, the appellants have
approached the trial court with unclean hands and invited the suit
dismissed for default. Therefore, it requires no interference against
the impugned order of the trial court. The trial court dealt the
issues in right perspective and there is no impropriety or
irregularity in the order of the trial court. Therefore, the C.M.A is
deserves to be dismissed.
11. In view of the foregoing discussion, the Civil
Miscellaneous Appeal is dismissed. 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: 08.09.2023
KK
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.A.No.323 OF 2022
Date: 08.09.2023
KK
