JUDGMENT: The present appeal is preferred against order, dated 02.03.2022, passed in I.A.No.12 of 2020 in O.S.No.572 of 2012 on the file of the VII Additional District and Sessions Judge, Visakhapatnam, rejecting application filed under Order IX Rule 9 CPC seeking restoration of the Suit, which was otherwise dismissed for default. 2. For the sake of convenience, parties herein are referred to as they were arrayed in the Suit before the trial Court. 3. Brief facts of the case are as follows: Initially sole plaintiff filed Suit against his brothers, their children and subsequent purchasers for declaration of title and recovery of possession. Plaintiff, 1 st defendant, 7 th defendant and 12 th defendant are brothers, who have inherited an extent of 4,200 sq. yards property, however, defendants 1, 7 and 12 have alienated their shares in favour of defendants 18 and 19 for an extent of 2,100 sq. yards and 1,050 sq. yards under possessory agreement of sale with general power of attorney vide registered document Nos.4649/2007, dated 18.05.2007 and 5122/2007. Dated 04.06.2007 respectively. Though an extent of 1,050 sq. yards was left to plaintiff, the same was encroached upon by subsequent purchasers by constructing a compound wall. Thus, it necessitated plaintiff to file Suit for declaration of title and for recovery of possession. The Suit was being contested by filing written statement by respective defendants. Sole plaintiff died pending Suit, thereby his legal heirs i.e. wife and children were got impleaded to pursue the Suit. While Suit was coming up for evidence of plaintiff, i.e., chief-examination of PW.1 and for marking of documents, as 1 st plaintiff did not turn up and the initial request of junior counsel appearing sought pass over and later did not turn up when the matter was called later, resulted in dismissal of the Suit for non-prosecution. Immediately, on 09.01.2020 plaintiffs have come up with petition under Order IX Rule 9 CPC seeking to restore the Suit. The defendants filed counter resisting the same and eventually, after hearing, the trial Court dismissed the said application by order, dated 02.03.2022. Assailing the same, present appeal is filed. 4. Heard Sri G.Ram Gopal, learned counsel for the appellant and Sri T.N.M. Ranga Rao, learned counsel for the contesting respondents. - 5. The defendants filed counter resisting the same and eventually, after hearing, the trial Court dismissed the said application by order, dated 02.03.2022. Assailing the same, present appeal is filed. 4. Heard Sri G.Ram Gopal, learned counsel for the appellant and Sri T.N.M. Ranga Rao, learned counsel for the contesting respondents. - 5. Learned counsel for the appellant would vehemently contend that trial Court erred in passing order of dismissal by taking into consideration the previous conduct of the plaintiffs, which is not relevant criteria for the purpose of considering the aspect of whether plaintiff was prevented from attending the hearing on a particular date, while considering the expression ‘sufficient cause’ envisaged in Order IX Rule 9 CPC. In support of said submission, he placed reliance on the judgment of erstwhile High Court of A.P. in Garuda Sakuntala v. A.V.M. Jagga Rao (died), 2000 (6) ALT 396 (D.B.) . Further, he has also contended that the trial Court erred in not taking into consideration and disbelieving the reasons cited, that of medical grounds which was the cause for not attending hearing on particular day. As plaintiff was suffering from acute enteropathica and was advised bed rest, as per medical certificate produced, the trial Court ought to have considered the same and recalled the order of dismissal by imposing certain costs. Therefore, he would urge that the order of the trial Court be set aside on certain terms enabling the plaintiff to contest the Suit on merits, as otherwise, she would loose substantive rights in canvassing her rights being barred to reagitate again. - 6. Opposing the said submission, learned counsel for the contesting respondents tried to substantiate the reasoning and order passed by the trial Court rejecting the application for setting aside the order of dismissal of the suit for default. He contended that the trial Court rightly has come to conclusion that reasons stated in the affidavit do not constitute sufficient cause for exercising the powers under Order IX Rule 9 CPC in order to recall the dismissal order, therefore, there is no infirmity in the order passed by the trial Court warranting interference by this Court. Hence, prayed for dismissal of the appeal. In support of his submissions, reliance has been placed on the judgment of this Court in Anumolu Jagan Mohan Rao v. Nikhila Constructions and Developers Pvt. Ltd . 2024 (2) ALD 669 (AP) 7. Hence, prayed for dismissal of the appeal. In support of his submissions, reliance has been placed on the judgment of this Court in Anumolu Jagan Mohan Rao v. Nikhila Constructions and Developers Pvt. Ltd . 2024 (2) ALD 669 (AP) 7. Perused the record and considered the rival submissions of both the learned counsel. 8. This is a Suit filed for substantive relief of declaration of title and recovery of possession. There is no dispute regarding relationship between the parties and that part of the ancestral property has been sold by remaining brothers of plaintiff in favour of defendants 18 and 19. Sole plaintiff initially died pending Suit. Later, his wife has been added as L.R. of the deceased to canvass the cause of action in the Suit. On 02.01.2020 when the Suit was listed for trial, in particular, examination of plaintiff and for marking of documents, as she did not turn up and request was made initially for pass over and even, thereafter, as there was no appearance, ultimately, Suit was dismissed for non-prosecution. Immediately, within a week i.e. on 09.01.2020, I.A.No.12 of 2020 came to be filed under Order IX Rule 9 CPC seeking for restoration of the Suit. Specific plea was taken in the affidavit filed in support of the said application that plaintiff was suffering from acute enteropathica and was advised bedrest for a period of three weeks and that in support of the same, medical certificate was also produced. 9. Aforesaid plea came to be disbelieved by trial Court on the ground that when she was not well and unable to attend the court, the junior counsel appearing in the matter ought to have straightaway made a request for adjournment, but not pass over, therefore, the same did not constitute sufficient cause for accepting the prayer in the I.A. 10. In the opinion of this Court, merely because junior counsel makes a request for pass over, the same ipso facto cannot be construed that he had knowledge of the ill-health of the witness and utmost he may be only making representation as instructed by his senior counsel. The affidavit filed clearly shows that junior counsel sought for pass over on the ground that his senior advocate who was conducting the Suit was attending to other Court. The affidavit filed clearly shows that junior counsel sought for pass over on the ground that his senior advocate who was conducting the Suit was attending to other Court. Many a times, it happens that the senior counsel who is conducting the case may not give entire instructions to junior counsel. The medical certificate produced by plaintiff is not in dispute, however, the trial Court has entertained counter filed at the instance of the respondents 18 and 19, ostensibly signed by the counsel, but not parties, which tried to dispute the illness and also medical certificate. - 11. Neither other defendants filed counter nor even respondents 18 and 19 filed any sworn affidavit denying the contents of the application, however, trial Court has proceeded to come to a conclusion, particularly, being weighed by the conduct of plaintiff on previous occasion. In para.5 of the impugned order, trial Court observed that even earlier to plaintiff did not turn up during the trial and that Suit was dismissed for default earlier in the year 2015. It is fairly well settled now that the previous conduct of plaintiff cannot be looked into for the purpose of considering application under Order IX Rule 9 CPC, rather the only requirement being that whether a party was prevented from appearing the matter on a given date is the criteria and test to be considered. In both the judgments, which are cited by the learned counsel for the appellant as well as learned counsel for the contesting respondents, viz., Garuda Sakuntala ’s case and Anumolu Jagan Mohan Rao ’s case respectively, it has been clearly held that previous conduct of plaintiff cannot be tested or even taken into consideration while considering either grant or refusal of the prayer for setting aside the default order. It is apt to refer to the observations made in Garuda Sakuntala ’s case, which read as follows: - “The learned Judge seems to have taken into consideration the absence of the appellant/plaintiff on some two earlier occasions (10-12-1992 and 29-12-1992). I may straight away observe that the past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was sufficient cause for non-appearance of the party on a particular subsequent date, i.e., the date on which the latest default is committed. I may straight away observe that the past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was sufficient cause for non-appearance of the party on a particular subsequent date, i.e., the date on which the latest default is committed. In this case, the appellant seems to have not attended the Court on the earlier two occasions prior to 15-2-1993. I may usefully quote the ruling of the Supreme Court, though rendered while considering the provisions of Order 9, Rule 13 CPC, in G.P. Srivastava v. R.K. Raizada, 2000 (4) ALD 54 (SC), wherein it was held that the Court has to decide whether there was sufficient cause for the absence on the relevant date and a party cannot be penalised for his/her previous negligence which has been overlooked and condoned earlier. Therefore, in this case, the Court below is not justified in adverting to the previous conduct of the appellant/ plaintiff while refusing to set aside the default dismissal order. The Court below ought to have considered whether there was sufficient cause for the absence of the appellant/plaintiff on 15-2-1993 only, and not the previous conduct of the appellant. Hence the contention of the Counsel for respondents, that in view of the previous conduct of the appellant in not attending the Court, the lower Court is right in dismissing the suit for default, cannot be accepted.” - 12. Even in the judgment cited by the learned counsel for the respondents in Anumolu Jagan Mohan Rao ’s case, after considering various judgments of this Court, held as follows: “19. Having regard to the principles laid down in the judgments cited by the learned counsel for the respondent No.1 – plaintiff, in the considered opinion of this Court, the judgments which the learned counsel for the petitioners placed reliance would not render any assistance to the case of the petitioners. Therefore, by any stretch of imagination, the conclusion arrived at in the impugned order cannot be faulted, in the absence of any mala fides on the part of the respondent No.1 – plaintiff. Therefore, by any stretch of imagination, the conclusion arrived at in the impugned order cannot be faulted, in the absence of any mala fides on the part of the respondent No.1 – plaintiff. Though, it is the specific contention of the learned counsel for the petitioners that previous conduct of the plaintiff would disentitle him from seeking the relief, in view of the settled legal position that while considering the applications of the present nature, the earlier conduct needs no consideration, the contention contra of the learned Senior Counsel for the petitioners stands rejected. It is also to be noted that the suit properties are valuable and substantial in nature, as such, the trial Court is perfectly justified in affording opportunity to the plaintiff. It is also pertinent to note that though in the present I.A.No.262 of 2019, the plaintiff – respondent No.1 sought for restoration of the suit along with I.A.No.404 of 2011, the learned Judge by way of the order impugned, had set aside the default order dated 19.07.2019 only.” 13. Ultimately, it is only the satisfaction of the Court on sufficient cause which would decide the application for restoration of Suit under Order IX Rule 9 CPC. The provision under Order IX Rule 9 CPC more or less being procedure in nature, the expression ‘sufficient cause’ envisaged therein should receive liberal consideration rather than applying rigid test in order to do substantial justice rather being struck on technicalities. - 14. In the facts of the present case, Suit is of substantive in nature as it raises title issue, therefore, instead of adopting technical approach, the Courts should endeavour to get parties redress their substantive rights over the property. The reason that has been pleaded for non-appearance on the date of dismissal clearly being on medial grounds supported by the medical certificate which advised bedrest for a period of three weeks, this Court is convinced that plaintiff has demonstrated ‘sufficient cause’ for exercising the powers under Order IX Rule 9 CPC, therefore, the trial Court ought to have allowed the application by restoring the Suit on file. Even if it is to be considered that earlier the Suit was dismissed, the same by itself cannot be ground for rejecting present application. What all Court is required to consider is as to whether cause shown for not attending on that particular day, was for bona fide reason. Even if it is to be considered that earlier the Suit was dismissed, the same by itself cannot be ground for rejecting present application. What all Court is required to consider is as to whether cause shown for not attending on that particular day, was for bona fide reason. Hence, the reasons assigned in the impugned order in rejecting the prayer are clearly perverse, and the order cannot sustain. 15. Considering the facts and circumstances of the present case, this Court deems it fit to allow the application and restore back the Suit to file by imposing costs of Rs.10,000/- payable to the defendants 18 and 19. The appellant/plaintiff shall deposit Rs.10,000/- in Suit account within two weeks from the date of receipt of a copy of this Judgment. - 16. Accordingly, the Appeal is allowed by setting aside the impugned order, dated 02.03.2022, passed in I.A.No.12 of 2020 in O.S.No.572 of 2012 on the file of the VII Additional District and Sessions Judge, Visakhapatnam, and the said I.A. is allowed and the Suit in O.S.No.572 of 2012 is restored back to trial Court and the learned trial Judge is directed to dispose of the Suit as expeditiously as possible, preferably, within a period of six months and that both the appellant/plaintiff and respondents/defendants are directed to cooperate for the expeditious disposal of the Suit. No order as to costs. As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed.