APHC010669002022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY. THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SRI JUSTICE NINALA JAYASURYA AND HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA CIVIL MISCELLANEOUS APPEAL NO: 27 OF 2023 Appeal under Order 43 Rule 3 of CPC, against the Order dated 21-09-2022 passed in IA.No.36 of 2017 in SOP.No.72 of 2016, on the file of the Senior Civil Judge, Dhone, Kurnool District. Between: K.Madhu Sekhar, S/o.K.Ranganna, aged about 41 Unemployee, R/o.Pathapeta, Dhone Town and Mandal, Kurnool District. years, Occ; ...PETITIONER/APPELLANT AND 1. K.Ramaiah, S/o.K.Ranganna, aged about 40 years, Occ;Unemployee R/o.Chigurumanu peta, Dhone Town and Mandal, Kurnool District. 2. The Commissioner, Dhone Municipality, Dhone. ...RESPONDENTS/RESPONDENTS lA NO: 1 OF 2023 r Petition filed under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the 2"^^ respondent not to disburse the service benefits of the deceased Kurapati Chinna Ranganna, pending disposal of CMA. Counsel for Petitioner : SRI SUGALI MAHESH NAIK, REPRESENTING SRI R.RAMANJANEYULU Counsel for Respondent No.1: NONE APPEARED Counsel for Respondent No.2: SRI GUDAPATI LAKSHMINARAYANA (SC FOR MUNICIPALITIES IN RAYALASEEMA REGION) The Court made the following JUDGMENT : APHC010669002022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NINALA JAYASURYA AND THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA CIVIL MISCELLANEOUS APPEAL No.27 OF 2023 Between: K.Madhu Sekhar, S/o.K.Ranganna, age about 41 years, Occ.Unemployee, R/o Pathapeta, Dhone Town & Mandal, Kurnool District. ...Petitioner AND K.Ramaiah, S/o K.Ranganna, age about 40 years, Occ.Unemployee, R/o.Chigurumanu peta, Dhone Town and Mandal, Kurnool District. The Commissioner, Dhone Municipality, Dhone. 1. 2. ...Respondents Mr.R.Ramanjaneyulu Mr.Gudapati Lakshminarayana Standing Counsel for Municipalities in Rayalaseema Region Counsel for the Petitioner Counsel for Respondent No.2 : The Court made the following JUDGMENT: (per Hon’ble NJS,J) The present appeal is preferred against the order dated 21.9.2022 passed in I.A. No.36 of 2017 in S.O.P. No.72 of 2016 on the file of the Court of the Senior Civil Judge, Dhone. The appellant is the petitioner in the said S.O.P. 1 2 CMA_27_2023 Heard Mr.Sugali Mahesh Naik, learned counsel appearing on behalf of the learned counsel for the appellant and the learned counsel for the respondent No.2. Perused the material on record. 2. i The learned counsel for the appellant, inter alia submits that on 21.2.2017 the above said S.O.P., was posted for fresh publication and on that day learned counsel, who was representing the appellant in the S.O.P., could not attend the Court due to ill-health and as such the matter was dismissed for default. He submits that immediately on 23.2.2017 the learned Advocate himself filed an affidavit, inter alia stating that on 21.2.2017 he could not represent the matter as he went to the Hospital for treatment and requested the Court to set aside the order dated 21.2.2017 dismissing the S.O.P., for default, by moving an application i.e., I.A. No.36 of 2017. The learned counsel further submits that the learned Senior Civil Judge instead of appreciating the averments made in the said affidavit, under a mistaken impression that the petitioner in the S.O.P., did not file any documentary proof to the effect that he joined in the Hospital, dismissed I.A. No.36 of 2017. He submits that it is the counsel for the appellant, who was representing the matter in the S.O.P., fell ill and in such circumstances, the order under challenge is misconceived. He also submits that subsequently, the said counsel who filed the affidavit expired. Making the said submissions, learned counsel seeks to allow the appeal, else the valuable rights of the appellantwould be seriously affected. 3. 4. The learned counsel for the respondent No.2, on the other hand, made submissions to sustain the order under challenge and urges to dismiss the appeal stating that there are no merits in the same. On a consideration of the matter and perusing the material on record, it is evident that the affidavit filed in support of I.A. No.36 of 2017 5. I 3 CMA_27 2023 was filed by the Advocate himself wherein the reason for not attending the matter on 21.2.2017 due to ill-health was specifically mentioned. In the normal circumstances, the petitioner who filed the S.O.P., was supposed to file the affidavit, but in the present case the concerned Advocate filed the affidavit that too immediately within two days along with appropriate application. As rightly contended by the learned counsel for the appellant, learned Senior Civil Judge misconstrued that the petitioner did not attend the Court and no certificate in support of his illness was filed. It is in fact the learned Advocate who could not represent the matter on 21.2.2017 owing to health reasons as set out in the affidavit. Considering the matter in its entirety, the order under challenge without proper appreciation of facts, in our opinion is not sustainable. Therefore, we are inclined to set aside the impugned order and allow I.A. No.36 of 2017 in the interest of justice. 6. Accordingly, the Civil Miscellaneous Appeal is allowed and the order dated 21.9.2022 is set aside. Consequently I.A. No.36 of 2017 stands allowed and S.O.P. No.72 of 2016 shall be restored to file. The learned Senior Civil Judge, Dhone shall dispose of the S.O.P., in accordance with law, as expeditiously as possible, after giving due opportunity of hearing to both the parties. 7. No order as to costs. Miscellaneous petitions pending, if any, shall stand closed. SD/- E.KAMESWARA RAO JOINT STRAR //TRUE COPY// SECTION OFFICER To, 1. The Civil Judge (Senior Division), Dhone, Kurnool District. (With records) 2. One CC to Sri R.Ramanjaneyulu, Advocate [OPUC] 3. One CC to Sri Gudapati Lakshminarayana (SC for Municipalities in Rayalaseema Region), Advocate [OPUC] 4. The Section Officer, VR Section, High Court of AP at Amaravati. 5. Two CD Copies BSV TAC HIGH COURT DATE 0:20/08/2025 \ JUDGMENT CMA NO. 27 OF 2023 ALLOWING THE CMA WITHOUT COSTS