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Andhra High Court · body

2022 DIGILAW 557 (AP)

P. M. Chenchu Manthadi v. M. Lokanadham Reddy

2022-06-17

NINALA JAYASURYA

body2022
ORDER : The present Civil Revision Petition is preferred against an Order dated 20.12.2021 in I.A.No.344 of 2019 in O.S.No.148 of 2013 on the file of the Court of the V Additional District Judge, Tirupati, Chittoor District. 2. Heard Mr.P.Gangarami Reddy, learned counsel for the petitioners and Mr. K.V.S. Vishnu Ram, learned counsel for the respondent. 3. The petitioners herein are the plaintiffs in the above referred suit filed against the respondent/defendant seeking a decree in their favour by directing the respondent/defendant to receive an amount of Rs.30,00,000/- from them and to execute a Registered Sale Deed in their favour in respect of plaint “A” and “B” schedule landed property, withdraw the right in “C” schedule property and for other reliefs. The respondent/defendant filed his written statement and contesting the matter. By an Order dated 08.06.2018, the suit was dismissed for default. Seeking to set aside the said Order, the petitioners/plaintiffs filed an application under Order IX, Rule 9 of the Code of Civil Procedure (hereinafter called as “CPC”) and the same was dismissed by an Order dated 20.12.2021. Aggrieved by the same, the petitioners/plaintiffs filed the present Revision Petition. 4. The learned counsel for the petitioners inter alia submits that the Order of the learned Trial Court dismissing the application to set aside the Order dismissing the suit for default without considering the matter in a proper perspective constitutes irregular exercise of jurisdiction vested in it. He submits that the petitioners immediately on dismissal of the suit for default, filed an application seeking to restore the suit, which shows their bona fides and interest to pursue the matter. He submits that the learned Trial Court ought to have accepted the reasons for non-appearance when the matter was posted for marking of documents on petitioners” side and adjourned the matter at the request of their counsel or granted time at least by imposing costs, instead of dismissing the suit for default. The learned counsel also submits that the learned Trial Judge went wrong in making observations with regard to the past-conduct of the petitioners and considering the same as one of the factors for rejecting the application to set aside the default Order. He submits that such an approach is not sustainable in Law and that as valuable properties are involved, opportunity should have been afforded to the petitioners/plaintiffs to contest the matter on merits. He submits that such an approach is not sustainable in Law and that as valuable properties are involved, opportunity should have been afforded to the petitioners/plaintiffs to contest the matter on merits. Accordingly, he seeks to set aside the Order under Revision and allow the application filed under Order IX, Rule 9 of CPC. 5. Learned counsel for the respondent on the other hand strenuously contended that the petitioners/plaintiffs are not showing interest in pursuing the suit. He submits that earlier by an Order dated 29.03.2016 in I.A.No.197 of 2015 the petitioners/plaintiffs were directed to deposit a sum of Rs.30,00,000/- with interest at 36% p.a. from the date of plaint till 15.03.2016 in the Court on or before 23.04.2016 and that the petitioners/plaintiffs have not deposited the said amount so far. He submits that the petitioners/plaintiffs took about 17 adjournments in the suit to mark the documents and took several adjournments even after filing I.A seeking restoration of the suit. He submits that the conduct of the petitioners/plaintiffs would go to show that they are dragging on the matter for the reasons best known to them. He submits that the learned Trial Court after taking into consideration the relevant aspects of the case, assigned cogent reasons for rejecting the application through the impugned Order and the same warrants no interference by this Court, as it does not suffer from any material irregularity or perversity. The learned counsel while placing reliance on the decisions reported in 1988 (1) ALT 41 (S.B.) etc., submits that there are no merits in the Revision Petition and the same is liable to be dismissed. 6. Perused the material on record. In the light of the rival contentions, the point that falls for consideration by this Court is “whether the Order under Revision is not sustainable, in the facts and circumstances of the case?” 7. From a reading of the Order under challenge, it is discernible that the learned Trial Judge dismissed the application under Order IX, Rule 9 of CPC on two counts i.e. (a) petitioners did not explain sufficient and cogent reasons for not attending the Court since more than 1 ½ years; and (b) no supporting Medical Certificate is filed for non-appearance of the petitioners/plaintiffs by reason of ill-health of the 2nd petitioner. No doubt, as pointed out by the learned Trial Judge, the 2nd petitioner/plaintiff filed his evidence affidavit long back and not getting ready for marking of documents, but the Court has to see whether there was any genuine reason for the absence of the party on the specific date of posting. 8. In the present case, the counsel for the petitioners/plaintiffs was present on the date of posting i.e. 08.06.2018 and sought time, which was eventually disallowed and the suit was dismissed for default. Seeking to set aside the said Order, immediately i.e. within a week, the petitioners/plaintiffs filed an application seeking to restore the suit, which shows their bona fides to contest the matter on merits. As valuable properties are involved, the learned Trial Court, in the opinion of this Court, ought to have taken a pragmatic view, instead of a pedantic view as held by Hon’ble Supreme Court in a catena of cases. There is no delay in filing the application under Order IX, Rule 9 of CPC. The Trial Court, in such circumstances, should have allowed the application at least by imposing costs, restored the suit and decided the same on merits, to render substantial justice to the parties. The learned Trial Court, in the opinion of this Court, failed to exercise the discretion vested in it in the proper perspective and the Order under Revision, therefore, calls for interference. Though the learned counsel for the respondent/defendant tried to impress upon this Court that the petitioners/plaintiffs are not showing interest in pursuing the matter and unnecessarily protracting the litigation, this Court deems it appropriate to provide an opportunity to the petitioners/plaintiffs so that the matter can be decided on merits, however by duly compensating the respondent by awarding costs. The decisions relied on by the learned counsel for the respondent are not directly applicable to the facts of the present case. 9. In the light of the above conclusions, the Civil Revision Petition is allowed. The Order dated 20.12.2021 in I.A.No.344 of 2019 in O.S.No.148 of 2013 on the file of the Court of the V Additional District Judge, Tirupati, Chittoor District is set aside. I.A.No.344 of 2019 is allowed, subject to the condition of payment of Rs.10,000/- towards costs to the respondent, within a period of six (06) weeks from the date of receipt of copy of this Order. I.A.No.344 of 2019 is allowed, subject to the condition of payment of Rs.10,000/- towards costs to the respondent, within a period of six (06) weeks from the date of receipt of copy of this Order. In the event of failure to comply with the said condition within the stipulated time, the suit stands dismissed. No order as to costs. As a sequel, miscellaneous applications, if any, pending shall stand closed.