Rajarapu Joseph And 3 Others vs Ravinayakula Kishan Reddy And 10 ...
2022 Latest Caselaw 6969 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                    C.R.P.No.7408 OF 2017
ORDER:

This civil revision petition under Section 115 CPC is

directed against the order dated 23.10.2017 in I.A.No.91 of 2015 in

A.S.No.110 of 2008, on the file of the VIII-Additional District

Judge (FTC), Warangal, wherein the said application filed by the

petitioners herein i.e., appellant Nos.5 to 8 and others under

Section XLI Rule 19 CPC seeking restoration of appeal, was

dismissed.

2. Heard the learned counsel for the petitioners and learned

counsel for the respondents. Perused the record.

3. The petitioners herein and others filed an application in

I.A.No.91 of 2015 before the appellate court under Section XLI

Rule 19 CPC for restoration of the appeal, which was dismissed

for default on 24.04.2015. Originally, the petitioners herein along

with others filed appeal before the II-Additional District Judge

(FTC), Warangal aggrieved by the judgment and decree dated

24.10.2007 in O.S.No.146 of 2001, on the file of the Principal

Senior Civil Judge, Warangal, wherein the said suit was dismissed.

4. When the appeal was coming up for hearing, as the

appellants were not diligent in prosecuting the appeal, the appellate

court dismissed the appeal for default on 24.04.2015. Aggrieved

by the same, the petitioners herein along with others filed

I.A.No.91 of 2015 for restoration of the appeal on the ground that

the absence of the counsel for appellants and non-representation

was only accidental but not intentional. The respondents filed

counter affidavit resisting the application filed seeking restoration

of the appeal. The appellants were not diligent in prosecuting the

appeal though sufficient opportunity was given to them to proceed

with the case resulting in dismissal of the application. Aggrieved

by the same, the present revision is field.

5. The findings of the appellate court at paragraphs 6 and 7

read as under:

"The docket in the appeal suit shows that on 19.01.2015 the IAs filed on 01.09.2014 were returned for the fourth time and thereafter the appeal suit underwent four adjournments for being (16.02.2015, 26.02.2015,

25.03.2015 and 09.04.2015). On 09.04.2015, the appeal suit was posted to 24.04.2015 as last chance. On 24.04.2015, the appellants remained absent. There was no representation. The respondents reported ready. The appeal suit was dismissed for default with costs. Hence, representing the appellant's counsel sought adjournment.

The appellants have not filed affidavit of their counsel to show that on 24.04.2015 he was engaged in another court when the appeal suit was called and dismissed for default. There is nothing on record to show that the appellants and their counsel were prevented by a sufficient cause from appearing and submitting arguments in the appeal. Therefore, the petition deserves to be dismissed".

6. The appellate court in the impugned observed that the

appellants ought to have filed affidavit of their counsel to prove

that he was engaged in another court when the appeal was called

and the same is an unreasonable ground to dismiss the appeal for

default. On behalf of the petitioners, an affidavit was filed giving

valid reasons for the absence of the counsel on 24.04.2015 and the

said case was represented by a junior counsel, who requested for

adjournment as the IAs filed by them for bringing the LRs on

record were coming up for re-submission and instead of granting

adjournment, the appellate court has passed an order of dismissal

for default. Thereafter, the application filed under Order XLI

Rule 19 for restoration of the appeal was dismissed.

7. After considering the submissions of learned counsel for the

petitioners and having regard to the fact that the petitioners herein

have taken steps within two days for restoration of the appeal, the

appellate court ought to have taken into consideration the said fact

and disposed of the appeal on merits, more particularly when the

affidavit of the petitioners discloses that the junior counsel

represented the matter and the case was posted for bringing

the LRs on record and the petitioners were ready to make

re-submission of IAs. The dismissal of the appeal for default on

the ground that the affidavit of counsel was not filed is not

proper. Considering the said circumstances, it is a fit case to set

aside the impugned order.

8. For the foregoing reasons, I am of the view that the

impugned order suffers from infirmity and irregularity warranting

interference.

9. In the result, civil revision petition is allowed. The impugned

order is hereby set aside and the appeal is restored to file.

Inasmuch as the appeal is of the year 2008, the appellate court may

endeavour to dispose of the appeal within three months from the

date of receipt of a copy of this order.

10. Miscellaneous petitions, if any pending, stand closed.

_______________________ A.SANTHOSH REDDY, J 26.12.2022 Lrkm