Smt. Chandrakala vs Smt. A. Eshwaramma
2021 Latest Caselaw 3653 Tel

     HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

        CIVIL MISCELLANEOUS APPEAL No.418 of 2021

JUDGMENT :

1. Appellant-plaintiffs have filed this Civil Miscellaneous Appeal

assailing the order dated 18.09.2019, in I.A.No.45 of 2017 in

O.S.No.57 of 2012 on the file of learned V-Additional District and

Sessions Judge, Medak at Sangareddy.

2. The appellant-plaintiffs have filed an application under Order

IX Rule 9 CPC to restore O.S.No.57 of 2012 by setting aside the

dismissal order dated 27.06.2016. This petition was contested by

respondent Nos.5 and 6, who are defendant Nos.5 and 6 in the original

suit. The learned V-Additional District Judge, Medak, having

considered the rival contentions, dismissed the application filed under

Order IX Rule 9 CPC with an observation that petitioner-plaintiffs did

not produce any medical record to show that PW-1 was prevented

from appearing before the Court and that even assuming for a moment

that on 27.06.2016, PW-1 was suffering from ill-health, what

prevented her from appearing before the Court on the previous Seven

adjournments, is also not explained and there is also no explanation as

to what prevented the petitioner-plaintiffs from appearing before the

Court if the contention of the 1st petitioner is true. Accordingly, the

petition was dismissed.

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3. Notice to the respondents is served, but called absent and no

representation. Heard the learned counsel for petitioners and perused

the record.

4. The suit in O.S.No.57 of 2012 was filed for partition and

separate possession. In the suit, only defendant Nos.5 and 6 are the

contesting defendants, filed the written statement, issues were settled

on 28.09.2015. PW-1's evidence affidavit in lieu of chief

examination was filed on 21.01.2016 and the suit was adjourned for

cross-examination of PW-1 from time to time. Finally, the suit was

adjourned to 27.06.2016. On a careful perusal of the extract of the

docket at page Nos.18, 19 and 21 along with the material papers

shows that on 29.03.2016, costs were imposed, PW-1 was present, at

the request of defendants' counsel, on payment of costs of Rs.250/- as

a last chance for cross-examination of PW-1, it was adjourned to

18.04.2016. That on 18.04.2016, Presiding Officer was on training,

hence, adjourned to 16.06.2016. That on 16.06.2016, Advocates

abstained from Courts, accordingly, case was adjourned for cross-

examination of PW-1 finally on 27.06.2016. That on 27.06.2016, it

was recorded that plaintiff/PW-1 and defendants-both called absent,

costs not paid, there is no representation on behalf of plaintiffs and

that plaintiffs continuously absent since 03.03.2016, hence, cross-

examination of PW-1 was deemed to be closed, chief evidence was

recorded as invalid and the suit was dismissed. This docket order

dated 27.06.2016 is sought to be set aside through I.A.No.45 of 2017.

AVR, J CMA.No.418 of 2021

But the trial Court has not considered the said request stating that on

27.06.2016, the matter was posted conditionally for appearance of

PW-1 for cross-examination and neither PW-1 nor other plaintiffs

chose to appear before the Court and the costs imposed were also not

paid.

5. As discussed above, as per the docket order dated 29.03.2016,

costs were imposed on the defendants when they failed to cross-

examine PW-1 who appeared on that day. Therefore, plaintiffs shall

not be penalized for non-payment of costs by the defendants. In

addition to it, the proceedings dated 27.06.2016 indicates that both the

parties were absent, but the learned Presiding Officer has recorded

that since 03.03.2016, plaintiff-PW-1 was continuously absent, which

is factually incorrect and contrary to the proceedings dated

29.03.2016. That apart, this is a suit for partition, therefore, every

party to the proceedings, be it the plaintiff or the defendant, shall have

equal right to continue the proceedings. On 27.06.2016, both the

plaintiffs and defendants were absent and it is the defendants who

failed to pay the costs. The learned Judge has simply closed the cross-

examination of PW-1 and dismissed the suit stating that the chief-

examination of PW-1 is invalid. It is not mentioned as to whether the

said evidence is eschewed or still part of the record. If that is part of

the record, a suit for partition cannot be dismissed without considering

the admissions, if any, in the pleadings and evidence in chief-

examination of PW-1.

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6. Learned counsel for appellants has relied upon Chapiri

Kuderu Shakshavali & another v. Shaik Isthak Ahamed &

others1, wherein, in similar set of facts, this Court at para 12, held that

the "sufficient cause" for non-appearance refers only to the date on

which the absence was made as a ground for dismissal of the suit and

cannot stretch to rely upon the circumstances anterior in time. In the

case on hand also, in the impugned order, it is mentioned that the

petitioner-plaintiffs remained absent continuously on previous Seven

adjournments. Though such an observation is factually incorrect, in

view of the docket proceedings dated 29.03.2016, considering the

principles laid in the above decision, the trial Court has erred in

dismissing the suit for default for the absence, if any, on the part of

petitioner-plaintiffs on the previous occasions. A liberal approach

should be made to understand the sufficient cause for non-appearance

of the plaintiff and it is always expedient to decide the matter on

merits rather than default in as much as the substantial rights of the

parties are involved. Further, on 27.06.2016, in fact, it is the

defendants who were supposed to pay the costs, then, only on

compliance of the condition of payment of costs, the stage of cross-

examination of PW-1 would arise. Therefore, since on that day, both

the plaintiffs and defendants were absent and there was no

representation, without eschewing the evidence of PW-1, in view of

the nature of the suit, the trial Court ought not to have dismissed the

suit. The application under Order IX Rule 9 CPC was filed

2017 (1) ALD 708

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immediately within limitation on 02.08.2016, but the matter was kept

pending without considering it till 18.09.2019 over a period of more

than three years.

7. Therefore, this Civil Miscellaneous Appeal is allowed, setting

aside the order dated 18.09.2019 passed in I.A.No.45 of 2017 in

O.S.No.57 of 2012 on the file of V-Additional District Judge, Medak

at Sangareddy. Consequently, the said I.A. stands allowed and the

suit in O.S.No.57 of 2012 is restored. Considering the fact that the

suit pertains to the year 2012, issues are settled, evidence affidavit of

PW-1 is on record and the suit is coming up for cross-examination of

PW-1, the learned V-Additional District Judge, Medak at Sangareddy

shall make every endeavor to dispose of the suit at the earliest

possible, not later than Six months from the date of receipt of a copy

of this order. Both the parties shall co-operate with the Court for

expeditious disposal as directed. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

_______________________________ A. VENKATESHWARA REDDY, J Date: 22nd November, 2021

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