Telangana High Court
Balerao Sara Radha Krishna vs Balerao Sara Hari Kishan on 1 July, 2025
HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL MICELLANESOUS APPEAL No.468 of 2024
JUDGMENT:
The present Civil Miscellaneous Appeal is filed against the
order dated 24.06.2024 passed in I.A.No.186 of 2023 in O.S.No.571
of 2007 on the file the V Additional District Judge, Ranga Reddy
District at L.B.Nagar, whereby and whereunder the application filed
by the appellants under Order IX Rule 9 r/w Section 151 of CPC was
dismissed.
2. Heard Sri M.Rajender Reddy, learned counsel for the appellants
and Sri Suresh Bhaktula, learned counsel for the respondents. Perused
the record.
3. The appellants herein are the plaintiffs, and the respondents
herein are the defendants in the suit. For convenience, hereinafter, the
parties will be referred to as they are arrayed in the suit.
4. The brief facts relevant for adjudication of the present Appeal
are that the plaintiffs instituted the suit in O.S.No.571 of 2007 on the
file of the II Additional District Judge, Ranga Reddy District at
L.B.Nagar, for partition and separate possession of suit schedule
property. The defendants entered appearance and filed their written
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statement and the matter was coming up for evidence of the plaintiffs,
however, as the plaintiffs failed to appear and adduce evidence, the
suit was dismissed for default on 04.06.2014.
5. The plaintiffs filed an application vide I.A.No.186 of 2023
under Order IX Rule 9 r/w Section 151 CPC, for restoration of the suit
by setting aside the order dated 04.06.2014, along with an application
vide I.A.No.610 of 2019 for condonation of delay of 1812 days in
filing the restoration application. The application-I.A.No.610 of 2019
was allowed vide order dated 31.01.2023, however, the application
filed for restoration of the suit i.e., I.A.No.186 of 2023 was dismissed
vide order dated 24.06.2024, with an observation that the plaintiffs
have approached the Court blaming their previous counsel and were
not diligent in pursuing the matter and it is the duty of the plaintiffs to
be present before the Court and thus, there is clear negligence on the
part of the plaintiffs. Aggrieved by the said order, the present Appeal
is filed.
6. Learned counsel for the appellants submitted that the trial Court
erred in dismissing the application filed for restoration of the suit
without properly appreciating the facts and circumstances of the case.
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He further submitted that the trial Court failed to consider the fact that
the application filed by the plaintiffs for condonation of delay was
allowed on the same grounds on which the application for restoration
is also filed, therefore, the impugned order is unsustainable. He further
submitted that the trial Court failed to appreciate the fact that the suit
was transferred from the Court where it was originally instituted, i.e.,
the Court of the II Additional District Judge, to the Court of
V Additional District Judge, Ranga Reddy District at L.B.Nagar, and
the plaintiffs were not informed of the said fact by their previous
counsel and as such, the plaintiffs could not properly prosecute their
case. He further submitted that for the mistake/default and misleading
on the part of their previous counsel, the plaintiffs should not be put to
loss as their substantial rights are involved and accordingly, prayed to
allow the Appeal.
7. Per contra learned counsel for the respondents submitted that
the plaintiffs were not diligent in pursuing the matter and did not
appear before the trial Court when the matter was coming up for
marking of the documents on their behalf. He further submitted that
the appellants/plaintiffs were not diligent in prosecuting the suit and
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for their default, they are simply throwing the blame on their previous
counsel that he has not informed them about the status of the case. He
further submitted that the plaintiffs have failed to make out any
ground to interfere with the impugned order passed by the trial Court
and prayed to dismiss the Appeal.
8. A perusal of the record would disclose that the suit was coming
up for trial since November, 2012 and it was adjourned from time to
time and was finally posted on 04.06.2014 for appearance of P.W-1
for marking of documents and on the said date, since the plaintiffs
were not present before the Court, the suit was dismissed for non-
prosecution. Seeking to set aside the said dismissal order and to
restore the suit, the plaintiffs filed an application under Order IX Rule
9 CPC along with an application under Section 5 of Limitation Act on
21.06.2019 to condone the delay of 1812 days in filing the restoration
application. The condone delay application was allowed on
31.03.2023, however, the application filed for setting aside the
dismissal order and restoration of suit was dismissed.
9. In the affidavit, filed in support of application for restoration of
suit, the plaintiffs averred that when they enquired with their counsel
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about the stage of the case, they were informed that it takes time for
disposal of the suit and their presence is not required except at the
time of evidence and assured them that he would inform them
whenever their presence is required. Believing the words of their
counsel, the plaintiffs did not appear personally before the Court and
when they have enquired through a known person about the status of
the case, they came to know that the suit was transferred from the
Court of II Additional District Judge to the Court of V Additional
District Judge, Ranga Reddy District at L.B.Nagar, and was dismissed
for non-appearance of plaintiffs. The plaintiffs averred that the factum
of transfer of their case from one Court to another was not informed
by their previous counsel and he acted against their interest, therefore,
they have entrusted the matter to a new counsel. The plaintiffs finally
averred that due to the mistake and misleading by their previous
counsel, they cannot be put to loss as their substantial rights are
involved in the suit.
10. A close scrutiny of the entire record reveals that the reasons put
forth by the plaintiffs in both the applications, i.e., the restoration
application and the application filed for condonation of delay in filing
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the restoration application are one and the same, even in verbatim.
The trial Court allowed the application filed for condonation of delay
i.e., I.A.No.610 of 2019, vide order dated 31.03.2023, by observing
that the error on the part of the counsel is sufficient and good ground
to condone the delay and the plaintiffs cannot be put to loss because of
mistake on the part of their counsel. It is relevant to note that the said
order has not been challenged and thus, has become final.
11. Later, the trial Court while adjudicating the application filed
under Order IX Rule 9 of CPC, appreciated the very same reasons as
were putforth by the plaintiffs in the condone delay application,
however, dismissed the said application by observing that the
plaintiffs cannot throw the entire burden on their previous counsel and
blame him for not informing the status of the case and the Courts are
intended for diligent litigants who actively pursue their cases and not
for those who are negligent in the legal proceedings and therefore, the
explanation given by the plaintiffs is not tenable.
12. The facts in the present case are very much alike as that of the
case in Dwarika Prasad (dead) through LRs. Vs. Prithvi Raj Singh 1.
The facts of the said case are that the suit was decreed ex parte by the
(2024) SCC Online Special Court 3828
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trial Court in 1994 due to the non-appearance of the appellant. The
appellant, unaware of the proceedings, later discovered the ex parte
decree and filed a restoration application on 31.10.1994, invoking
Order IX Rule 13 and Section 151 of the CPC. The appellant claimed
that his previous counsel had failed to inform him about the
proceedings. The Trial Court allowed the restoration application,
recognizing the appellant's illiteracy, good faith, and the fact that his
ignorance was due to his previous counsel's negligence. The
respondent challenged the Trial Court's order in a revision petition
before the District Court, which reversed the Trial Court's decision
and the said decision was upheld by Allahabad High Court in the Writ
Petition. However, the Supreme Court allowed the appeal, set aside
the orders of the High Court and the District Court, and restored the
Trial Court's decision allowing the restoration application.
13. In the said judgment, the Hon'ble Supreme Court referred to
the ratio laid down in Rafiq v. Munshilal 2, wherein it is held that a
party should not suffer due to their counsel's negligence, as litigants
often lack knowledge of legal procedures and rely entirely on their
advocates, and held that the appellant's reliance on his previous
1981 (2) SCC 788
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counsel, who had failed to inform him about the proceedings, should
not lead to his penalization.
14. The judgment rendered by the Hon'ble Supreme Court in
Dwarika Prasad's case (cited supra) is squarely applicable to the
present case.
15. In the instant case, the plaintiffs pleaded that they were not
informed about the transfer of their suit from the Court where it is
originally instituted to another Court and as such, being ignorant of
the same and further, relying on the words of their counsel that he
would inform them as and when their presence is required, they were
rest assured that the suit proceedings are going on and that, only after
two years from the date of dismissal of the suit, that too, through a
known person they came to know about the dismissal of the suit.
Immediately, on learning about the dismissal of the suit, the plaintiffs
have acted promptly and filed two applications, i.e., one application
for setting aside the dismissal order and restoration of the suit, and
another application for condonation of delay in filing the said
restoration application. Thus, it can be said that the conduct of the
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plaintiffs was in good faith. For the negligence and mistake of their
previous counsel, the plaintiffs should not be penalized.
16. For the foregoing reasons and in the light of the ratio
decidendi of the Hon'ble Supreme Court in Dwarika Prasad's case
(cited supra), this Court holds that the impugned order passed by the
trial Court suffers from illegality and irregularity and as such, the
same is liable to be set aside.
17. Accordingly and also taking into account the peculiar facts
and circumstances of the case, this Civil Miscellaneous Appeal is
allowed with costs of Rs.10,000/- (Rupees Ten thousand only)
payable to the High Court Legal Services Authority within period of
30 days from the date of receipt of a copy of this order and the
impugned order is set aside, and consequently, IA.No.186 of 2023
stands allowed.
18. As a sequel, pending miscellaneous petitions, if any, shall
stand closed.
__________________________________
LAXMI NARAYANA ALISHETTY, J
Date:01.07.2025
dr
