IN THE HIGH COURT OF ANDHRA PRADESH AT AIVIARAVATI WEDNESDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V.SRINiVAS CIVIL MISCELLANEOUS APPEAL NO: 523 OF 2024 Appeal Under Order 43 Rule 1 of CPC, Aggrieved by the Docket order dated 21-06-2024 passed in I.A 861 of 2019 in O.S No. 25 of 2017 on the file of the Court of the learned X Additional District Judge, Narsapur. Between: 1. Smt. Dommeti Kamala, W/o Suryanarayana, aged 65 years House wife, resident of Door No.2-51, Chittavaram village, Narasapuram Mandal, West Godavari District. 2. Smt. Pati Bhagya Lakshmi, W/o Sriramulu, aged 60 years, house wife. Door No.1-11, Antervedi Kara, Vi nayaka Nagar, Sakhinetipalli Mandal, East Godavari District. ...Appellants / Plaintiffs AND 1. Katta Srinivasa Rao, S/o Saraswathi Rao, aged 59 years. Cultivation, Door No. 1-4, Sagam Cheruvu, Palakol Mandal, West Godavari District. 2. Smt. Katta Venkata Narasamma, W/o Saraswathi Rao, aged 82 years. House wife, D.No.1-4, Sagam Cheruvu, Palakol Mandal. West Godavari District. ...Respondents / Respondents Counsel for the Appellant :SR1. R DURGA LATHASRI Counsel for the Respondents: SRI. N N SOMENDRA REDDY The Court made the following: JUDGMENT THE HON’BLE SRI JUSTICE V.SRINIVAS CIVIL MISCELLANEOUS APPEAL NO. 523 of 2024 JUDGMENT: This miscellaneous appeal is filed under Order 43 Rule 1 of C.RC against the order, dated 21.06.2024 passed in I.A.No.861 of 2019 in O.S.No.25 of 2017 on the file of the learned X Additional District Judge, Narsapur, West Godavari District, passed in a petition filed under Order 9 Rule 9 of C.RC by the plaintiffs to set aside the order of dismissal, dated 13.09.2019. It is the case of the appellants that the appellant Nos.1 and 2/plaintiff Nos.1 and 2 herein filed a suit against the respondent Nos.1 and 2/defendant Nos.1 and 2 for partition of the plaint 2. schedule property into 16 equal shares by metes and bounds and for allotment of five such separated shares each to the each of the plaintiffs and the defendants contested the suit by way of filing the written statement and thereafter issues were also settled before the Court below. It is their further contention that on 13.09.2019, the suit was 3. dismissed for default for non-appearance of RW1. In fact, the suit was posted to 13.09.2019 on payment of costs of Rs.50/- and for 2 evidence of PW1. But, on that day the Advocates abstained the courts and since the counsel appearing on behalf of the appellants did not appear to the court and the PW1 was also called absent, the court made an order of dismissal which is contrary to the settled law. The primary contention of the appellants is that PW1 is aged about 60 years suffering with old aged ailments and despite the said fact, the trail court dismissed the suit for default. It is further submitted that immediately after the suit was dismissed for default, PW1 filed a petition for restoration and notices were also served on the defendants, but the said application was kept pending and the same was dismissed on 21.06.2024. Hence, the present appeal is preferred by the appellants seeking to set aside the order passed by the trial court. 4. The learned counsel for the appellants submitted that the trial Court has erroneously dismissed the suit even though the plaintiffs are ready for trial and appearing before the court. Only on one occasion the PW1 was called absent and without taking into consideration of the fact of previous conduct of PW1 who is appearing before the court for all the adjournments without fail. the trial Court without considering the same has dismissed the 3 suit. The non-appearance of the witness on one occasion shall not be taken into consideration in a suit like the nature of partition which may ultimately affect the rights of both the parties. In support of his contention, he relied upon a decision of Hon’ble Apex Court in a decision reported in Kamla Bai Vs. Harishankar Arora and others\ wherein at Para Nos.2 and 3, which was held as follows: 5. It appears that trial court dismissed suit for non prosecution against which order when restoration was filed, the same was refused. Against the said orde,r the High Court was moved which upheld the said order. Hence, this appeal by special leave. 2. 3. It appears that there was a case of non- appearance for only one day. The respondents have failed to appear in spite of service of notice to contest the prayer made in this appeal. In the facts and circumstances of the case, we are of the view that the trial Court should have restored the suit to its original file and the High Court was not justified in confirming the same. ” 6. Besides the aforesaid decision, the learned counsel for the appellants also relied upon a decision of Hon’bie Apex Court in (2010) 15 see 454 4 % Robin Thapa Vs. Rohit Dora^, wherein at Para No.7 it was held as follows: “7. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant The cause of justice does require that as far as possible, adjudication be done on merits. ’’ 7. Denying the contention of the learned counsel for the appellants, the learned counsel for the respondents submits that after filing of the chief-affidavit of PW1 in the suit, the PW1 did not turn up to the Court and even though the suit was adjourned on condition of payment of costs, the PW1 failed to attend the court on 13.09.2019, which compelled the trial Court for dismissal of the suit for default. He further submits that the reasons mentioned in the affidavit filed in support of the petition are all incorrect and not tenable and that the appellants did not properly explained the delay for non-appearance of PW1 on 13.09.2019 and the present appeal is devoid of merits and is liable to be dismissed. 8. Now, the point for determination is:- “Whether the order, dated 21.06.2024 passed in I.A.No.861 of 2019 in O.S.No.25 of 2017 on the file of the learned X 2 (2019) 7 see 359 5 Additional District Judge, Narsapur, West Godavari District, is liable to be set aside? Point:- As could be seen from the material on record, the appellants herein i.e., who are plaintiffs filed a suit for partition against the defendants. In the present suit, issues were already framed and chief affidavit of PW1 was filed and the matter is coming for cross-examination of PW1 on 13.09.2019. On that day, the suit was dismissed for default for non-appearance of the 9. PW1. It is the contention of the plaintiffs that on account of Advocates abstained from Courts, there is no representation on their behalf and PW1 also failed to attend on that day. It might be true that the matter is coming for cross-examination of PW1 and PW1 was called absent consecutively for three times prior to that date and on the condition of imposing costs, the matter was posted on 13.09.2019. But, on the date of dismissal, it can be observed that simply may be because of the failure on the part of the advocate to represent the plaintiffs before the court on account of abstention of courts, the plaintiffs should not be made 10. liable for the consequences. 6 A 11. The challenge under this miscellaneous appeal is whether petitioner/plaintiff/appellant was able to establish sufficient cause in non-appearing before the Court below for cross examination and whether the Court below had seen sufficient cause was established to prove his claim. 12. In this connection, the context is well settled under Order IX Rule 9 which demonstrates/provides for restoration dismissed under Order IX Rule 8 for settled law when once of suits non-appearance. It is a a suit is dismissed wholly or partly, the plaintiff is precluded from bringing a fresh suit in respect of the cause of action, however. Rule IX permits for filing application to set aside the dismissal order. As same an seen from the Rule, for an application of restoration of the suit to be allowed showing “sufficient cause” to the satisfaction of the Court for by non- appearance. The satisfaction of the court on the “sufficient cause” is the in deciding restoration applications under Order IX Rule 9. It is reiterated as a principle of law that Order IX Rule 9 being procedural in nature, “sufficient cause” should 13. crux receive a liberal consideration as an elastic expression in order to do substantial justice rather than being struck on technical rigidities. 7 Further, it is settled law that every case shall be disposed on merits rather than disposing otherwise. In this context of Order IX Rule 9, a coordinate Bench of this Court in Mahd.Khaja v. C.Nand Kumar^ observed that when substantial rights are involved, it is expedient to decide the matter on merits than to dismiss the suit for default. The case on hand is for suit for partition and the rights of the plaintiff and defendant have to be decided on merits and those rights are substantial in nature. Coming to the merits of the case, as could also be seen from the cause title, PW1 was aged 60 years old at the time of filing of the suit who may suffer from old, aged ailments. Besides that, from the date of filing of the restoration petition under Order IX Rule 9, it was coming to an end by the year 2024, thereby, the litigation stood stalled for a period of four years before the Court below. Having regard to the above facts and circumstance, settled legal position, this Court is of the considered opinion that, the trial Court ought to have given one more opportunity either by imposing costs and may let the trial goes on. Accordingly, the point is answered. 14. 15. 3 2000 AIHC (2694) (AP) 1 16. In the light of the aforesaid discussion, the appeal is liable to be allowed by imposing costs of Rs.5,000/-. 17. Accordingly, the appeal is allowed by setting aside the impugned order dated 21.06.2024 passed in I.A.No.861 of 2019 in O.S.No.25 of 2017 on the file of the learned X Additional District Judge, Narsapur, West Godavari District, however subject to payment of costs of Rs.5,000/- {Rupees five thousand the respondents before the trial Court only) to on or before 28.03.2025 payable by the petitioners/plaintiffs, failing which, the petition shall stands automatically dismissed without any further reference to this Court. Consequently, on complying the above said condition, the suit in O.S.No.25 of 2017 is restored to its file. The Trial Court is also directed to dispose of the suit as expeditiously as possible. Both the parties are also directed to cooperate with the Trial Court for disposal of the main suit. As a sequel, miscellaneous petitions pending, if stand closed. any, shall Sd/- E KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// ' SECTION OFFICER To, 1. The X Additional District Judge, Narsapur (with records) 2. One CC to Si/lfR Durga Lathasri, Advocate [OPUC] 3. One CC to Sri. N N Somendra Reddy, Advocate [OPUC] 4. The Section Officer, V R Section, High Court of Andhra Pradesh at Amaravathi. 5. Three CD Copies PR vna HIGH COURT DATED:05/03/2025 JUDGMENT CMA.No.523 of 2024 I e? h 2 <1 MAK 2C25 Current Section £>5spatcv\^ ALLOWING THE CIVIL MISCELLANEOUS APPEAL