Smt. Eshwaramma, And 2 Others vs M.Chandappa, And 4 Others
2022 Latest Caselaw 6605 Tel

         THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                           AND
       THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

        CIVIL MISCELLANEOUS APPEAL No.263 OF 2022

JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)


       This appeal, under Order XLIII Rule 1 C.P.C., is filed by the

appellants/plaintiffs, aggrieved by the order and decree, dated

24.02.2022, passed in I.A.No.235 of 2021 in I.A.No.832 of 2012 in

O.S.No.911 of 2007, by the learned IV Additional District Judge,

Ranga Reddy District at L.B.Nagar, whereby, the subject I.A. filed

by the appellants/plaintiffs, under Order IX Rule 9 read with

Section 151 C.P.C., seeking to set aside the dismissal order, dated

16.03.2021, passed in I.A.No.832 of 2012 and restore I.A.No.832

of 2012 to its file, was dismissed.


2.     Heard the learned counsel for both sides and perused the

record.


3.     As seen from the material placed on record, I.A.No.832 of

2012 in O.S.No.911 of 2007 on the file of learned IV Additional

District Judge, Ranga Reddy District at L.B.Nagar, filed by the

appellants/plaintiffs for restoration of the subject Suit was allowed

conditionally i.e., subject to payment of costs of Rs.1,000/- by the
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                                    2                         CMA.No.263 of 2022



appellants/plaintiffs to the other side. Time was extended from

time to time for payment of costs. Admittedly, the costs were not

paid.    Since the said condition was not complied with and there

was no representation for the appellants/plaintiffs, the Court

below, by order, dated 16.03.2021, dismissed I.A.No.832 of 2012

for default. The operative portion of the order, dated 16.03.2021,

reads as follows:

        "Petitioner called absent. No representation till 04.00 pm.
        Cost also not paid. Hence petition is dismissed for
        default."

4.      It is brought to the notice of this Court by the learned

counsel for the appellants/plaintiffs that as on the date of passing

of the order, dated 16.03.2021, Covid-19 pandemic was prevalent

and there were guidelines not to dismiss the Suits or Interlocutory

Applications for default. In spite of the same, I.A.No.832 of 2012

was dismissed for default by the Court below.


5.      As submitted by the learned counsel for the appellants/

plaintiffs, during March, 2021, Covid-19 Pandemic was prevalent.

There was thin attendance in the Courts as well as in other

establishments. People were facing lot of difficulties. In view of

the facts and circumstances of the case, the Court below ought to
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                                    3                         CMA.No.263 of 2022



have given an opportunity to the appellants/plaintiffs to pay the

costs imposed in I.A.No.832 of 2012. As seen from the material

placed   on    record,   there   were   laches   on   the   part    of    the

appellants/plaintiffs in paying the costs in time.      The appellants/

plaintiffs were delaying the proceedings and protracting the

litigation.   However, the subject Suit in O.S.No.911 of 2007 was

filed for partition and separate possession of the suit schedule

property and it is required to be disposed of on merits.

Considering the totality of the circumstances, to provide an

opportunity to the appellants/plaintiffs, the impugned order and

decree, dated 24.02.2022, are liable to be set aside.


6.     Accordingly, the appeal is allowed and the impugned order

and decree, dated 24.02.2022, passed in I.A.No.235 of 2021 in

I.A.No.832 of 2012 in O.S.No.911 of 2007, by the learned IV

Additional District Judge, Ranga Reddy District at L.B.Nagar, are

set aside, subject to condition of the appellants/plaintiffs paying

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

No.1/defendant No.1, within a period of fifteen (15) days from

today. Consequently, I.A.No.235 of 2021 stands allowed. It is

also relevant to state that the subject Suit is of the year 2007 and Dr.SA,J & NBK,J

it needs to be disposed of expeditiously. Therefore, the Court

below is directed to dispose of the subject Suit i.e., O.S.No.911 of

2007, in accordance with law, within a period of three (3) months

from today, subject to the appellants/plaintiffs complying the

conditions imposed in this appeal as well as in I.A.No.832 of 2012

in O.S.No.911 of 2007, within a period of fifteen (15) days from

today.

Miscellaneous Petitions, if any, pending in this appeal shall

stand closed.

______________________ Dr. SHAMEEM AKTHER, J

______________________ NAGESH BHEEMAPAKA, J Date: 08.12.2022 PSA/MD