K Yakaiah, Khammam Dist Another vs V. Krishna, Mahaboobnagar Dist ...
2023 Latest Caselaw 978 Tel

               THE HON'BLE SRI JUSTICE M.LAXMAN
           CIVIL MISCELLANEOUS APPEAL No.95s of 2016

JUDGMENT:

1. The present Civil Miscellaneous Appeal has been filed by

the plaintiffs against the order dated 23.12.2015 in I.A.No.488

of 2015 in I.A.No.162 of 2014 in O.S.No.20 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.162 of 2014 in O.S.No.20 of

2011 and to restore the same, was dismissed.

2. The case of the appellants/plaintiffs is that they have filed

a suit in O.S.No.20 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 the wife of

appellant No.1 by falling into pit dug by the

respondents/defendants. When the said suit has come up for

evidence, on account of absence of the learned counsel for the

appellants/plaintiffs before the Court below, it was dismissed

for default. Immediately, they have filed an application viz.,

I.A.No.162 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 petitioners 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. 488 of 2015 has been filed

by the appellants/plaintiffs to set aside the order dated

28.04.2015 passed in I.A.No.162 of 2014 in O.S.No.20 of 2011.

The said application was dismissed.

3. Respondent No.2 has filed counter denying the correctness

of the averments made by the appellants/plaintiffs. When there

was no documentary evidence on the part of the

petitioners/plaintiffs 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 appellants herein/plaintiffs.

4. The facts disclose that a suit was filed by the appellants

herein/plaintiffs for damages for the death of the wife of

appellant No.1 herein in a pit dug by the respondents. When

such suit was coming for the evidence, on account of non-

production 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

appellants 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

appellants/plaintiffs 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.488 of 2015 in

I.A.No.162 of 2014 in O.S.No.20 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 appellants

herein/plaintiffs and pass appropriate orders considering the

nature of the claim set up in O.S.No.20 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.95 of 2016

27.02.2023 Dua