APHC010387252024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] FRIDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI CIVIL MISCELLANEOUS APPEAL NO: 603/2024 Between: Karri Narsi Reddy, ...APPELLANT AND Penkey Peda Satyam Satyam and Others ...RESPONDENT(S) Counsel for the Appellant: 1. K.P.S. SAILESH REDDY Counsel for the Respondent(S): 1. The Court made the following: 2 CMA.No.603 of 2024 JUDGMENT: This appeal is filed under Order XLIII, rule 1 CPC against the order dated 28.06.2024 in I.A.No.1278/2019 in O.S.No.229/2014 on the file of the Court of the IV Additional District Judge, Kakinada, filed under Order IX, rule 9 CPC by the plaintiff to set aside the order of dismissal of the suit on 06.09.2019 for default. 02. The plaintiff filed the suit for recovery of amount on the foot of mortgage. The plaintiff was examined as PW.1 and attestor was examined as PW.2. The affidavit of the 1st defendant was filed as DW.1. 03. On the petition of the defendants, PWs.1 & 2 were recalled by order dated 31.07.2019 directing them to appear on 09.08.2018. From then onwards, the suit was adjourned to 19.08.2019, 22.08.2019, 29.08.2019 and 03.09.2019. As PWs.1 and 2 remained absent, the suit was adjourned to 06.09.2019 on payment of costs of Rs.250/-, however on that day also, since the witnesses were absent and there was no representation, the suit was dismissed for default. Immediately, thereafter, on 09.09.2019, the petition in I.A.No.1278/2019 was filed. It was contended that as the counsel for the plaintiff intimated to the plaintiff that except seeking recall of PWs.1 and 2, the defendants failed to file a petition to reopen the evidence, he could not attend and that on 06.09.2016, he could not attend for personal reason due to viral fever. The petition was not opposed and no counter was filed by the respondents. However, the trial Court dismissed the petition holding that PWs.1 and 2 were absent on 09.08.2019, 19.08.2019, 22.08.2019, 29.08.2019 and 03.09.2019 and also on 06.09.2019 to which date the case was adjourned on costs of Rs.250/- and that on 06.09.2019, costs were not paid and there was no representation and filing of the petition immediately thereafter on 09.09.2019 indicated that the plaintiff was watching the proceedings, but deliberately failed to attend. 3 CMA.No.603 of 2024 04. Aggrieved by the order, this appeal was filed. 05. The learned counsel for the appellant submitted that the trial Court erred in dismissing the petition though the evidence had already been led and the same had not been eschewed. He further submitted that the trial Court ought to have appreciated the cause stated by the petitioner for absence on 06.09.2019 and also on the days prior thereto. 06. Though, notices were sent to the addresses of the respondents No.1 and 2 as given before the trial Court, there is no report placed before this Court. However, since they did not contest before the trial Court, this Court proceeded to hear the petitioner for disposal of the matter. 07. As rightly contended by the learned counsel for the petitioner, since substantial evidence was recorded, it is erroneous to dismiss the suit for default without appreciating the evidence on record, particularly as evidence of the plaintiff was not eschewed. It is settled law that even in a case where the defendants remain ex parte, evidence available on record shall be appreciated to dispose of the proceedings. As such, the trial Court erred in dismissing the petition. 08. In the result, the appeal is allowed by setting aside the impugned order dated 28.06.2024, however subject to payment of costs of Rs.1,000/- (One Thousand Rupees only) to the respondents before the trial Court within 15 days from the date of receipt of copy of this Order, failing which the petition stands dismissed without any further order. Pending miscellaneous applications, if any, shall stand closed. ________________________ JUSTICE B.S.BHANUMATHI Date: 31.01.2025 NSM 4 CMA.No.603 of 2024 46 HON’BLE Ms. JUSTICE B.S.BHANUMATHI CIVIL MISCELLANEOUS APPEAL NO: 603/2024 Date: 31.01.2025 NSM