Telangana High Court
K Sammakka, Khammam Dist vs Vakiti Krishna, Mahaboobnagar ... on 27 February, 2023
Bench: M.Laxman
THE HON'BLE SRI JUSTICE M.LAXMAN
CIVIL MISCELLANEOUS APPEAL No.94 of 2016
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been filed by
the plaintiff against the order dated 23.12.2015 in I.A.No.489 of
2015 in I.A.No.163 of 2014 in O.S.No.21 of 2011, on the file of
the learned I Additional District Judge, Khammam,
whereunder, the application filed by the plaintiff under Order IX
Rule 9 r/w 151 of CPC, to set aside the dismissed for default
order dated 28.04.2015, in I.A.No.163 of 2014 in O.S.No.21 of
2011 and to restore the same, was dismissed.
2. The case of the appellant/plaintiff is that she has filed a
suit in O.S.No.21 of 2011, on the file of the Court of the learned
I Additional District Judge, Khammam, to claim the
compensation for damages on account of death of her daughter
by falling into pits dug by the respondents/defendants. When
the said suit has come up for evidence, on account of absence
of the learned counsel for the appellant/plaintiff before the
Court below, it was dismissed for default. Immediately, she has
filed an application viz., I.A.No.163 of 2014 to restore the said
suit along with the chief affidavit and it was posted for hearing
on 28.04.2015. On that day, the learned counsel for the
petitioner could not make her presence, as she was engaged in
other Court. Therefore, the said application was dismissed for
default. Hence, another interlocutory application viz., I.A.No.
489 of 2015 has been filed by the appellant/plaintiff to set aside
the order dated 28.04.2015 passed in I.A.No.163 of 2014 in
O.S.No.21 of 2011. The said application was dismissed.
3. Respondent No.2 has filed counter denying the correctness
of the averments made by the appellant/plaintiff. When there
was no documentary evidence on the part of the
petitioner/plaintiff as well as the respondents/defendants and
as there was no valid reason for absence, the Court below has
dismissed the application by considering the averments and
arguments. Hence, the present appeal has been preferred at the
instance of the appellant herein/plaintiff.
4. The facts disclose that a suit was filed by the appellant
herein/plaintiff for damages for the death of her daughter in a
pit dug by the respondents. When such suit was coming for the
evidence, on account of non-productions of evidence, it was
dismissed. Thereafter, an application was filed to restore the
said suit with the evidence, which demonstrates the positive
action on the part of the appellant herein/plaintiff. The Court
below had not considered the explanation for absence when the
application to restore was listed. The reason given shows that
the learned counsel for the appellant/plaintiff was engaged in
other case in the same Court. This reason was not held to be a
false claim. Therefore, Court below should have ignored the
technicality in adjudicating the claims of compensation. This
Court finds that the Court below should have allowed the
application. Therefore, the present appeal is require to be
allowed.
5. In the result, the Civil Miscellaneous Appeal is allowed
and the order dated 23.12.2015 in I.A.No.489 of 2015 in
I.A.No.163 of 2014 in O.S.No.21 of 2011, on the file of the
learned I Additional District Judge, Khammam, is set aside. The
Court below is directed to consider the restoration application
forthwith and to give an opportunity of hearing to the appellant
herein/plaintiff and pass appropriate orders considering the
nature of the claim set up in O.S.No.21 of 2011. The said
application has to be disposed of within a period of two weeks
from the date of this order. Simultaneously, if the said suit is
restored and the same shall be disposed of within three months
from the date of this restoration order.
No costs. Miscellaneous Petitions pending if any shall stand
closed.
______________________
JUSTICE M.LAXMAN
24.02.2023
Note: Issue CC by 01.03.2023
B/o.
Dua
THE HON'BLE SRI JUSTICE M.LAXMAN
CIVIL MISCELLANEOUS APPEAL No.94 of 2016
27.02.2023
Dua
