APHC010177062024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] TUESDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL No.355 of 2024 Between: KOMMU VISWANADHA REDDY, S/O K.JAYARAMI REDDY, AGED ABOUT 55 YEARS, R/O D.No.2-302, KOTHA CHERLOPALLI VILLAGE, PUDIPATLA POST, TIRUPATI RURAL, TIRUPATI DISTRICT. ...APPELLANT AND G SURESH, S/o CHINNAIAH, AGED ABOUT 62 YEARS, R/o. RAJA NAGAR, MARKET YARD, RAILWAY KODUR, YSR KADAPA DISTRICT. ...RESPONDENT Counsel for the Appellant: 1. KOCHIRI RAJA SHEKAR Counsel for the Respondent: 1. The Court made the following: 2 CGR,J C.M.A.No.355 of 2024 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL No.355 of 2024 J U D G M E N T: The present civil miscellaneous appeal, under Order 43 Rule 1 C.P.C., is filed challenging the order dated 30.10.2023 passed in I.A.No.110 of 2022 in O.S.No.1 of 2018 on the file of learned III Additional District Judge, Tirupati. 2. By the impugned order, the application filed by the appellant herein/plaintiff in the suit, under Order 9 Rule 9 C.P.C., seeking to set aside the order of dismissal of the suit for default, came to be rejected by the trial Court. 3. The appellant/plaintiff filed O.S.No.1 of 2018 for recovery of money on the strength of two promissory notes, both dated 28.10.2014, executed in his favour by the respondent/defendant for an amount of Rs.7.00 lakhs and Rs.4.00 lakhs respectively. As the aforesaid amounts were not repaid within the agreed time, after issuing legal notice, the suit came to be filed for recovery of principal amount along with interest thereon. The suit was contested by the respondent/defendant by filing written statement. Issues came to be settled on 20.08.2018 and since then, the suit was being adjourned from time to time for the evidence of the appellant/plaintiff. Ultimately, 3 CGR,J C.M.A.No.355 of 2024 on 17.12.2021, on account of the absence of the appellant/plaintiff, the suit came to be dismissed for default. Immediately thereafter, on 20.12.2021, the appellant filed I.A.No.110 of 2022, under Order 9 Rule 9 C.P.C. praying to set aside the order of dismissal of suit for default and to restore the suit. The respondent/defendant filed counter opposing the application. The trial Court, having considered the pleadings in the I.A. as well as counter and having heard respective counsels, dismissed the application by the impugned order. Assailing the same, the present civil miscellaneous appeal is filed. 4. Heard Sri T. Venkata Manoj, learned counsel representing Sri Kochiri Raja Shekar, learned counsel for appellant. None appears for respondent, despite deemed service of notice. 5. Learned counsel for appellant contended that the trial Court committed an error in not allowing the application for restoring the suit, despite the appellant/plaintiff showing sufficient cause for non- appearance on 17.12.2021. It is his submission that the appellant has a very good case on merits, and that only due to ill-health i.e., suffering from fever, he was unable to either contact the counsel or appear before the Court to lead evidence on that particular date. It is contended that as the cause has been sufficiently explained in the affidavit filed along with I.A., the trial Court ought to 4 CGR,J C.M.A.No.355 of 2024 have taken the same into consideration while deciding the application. 6. Perused the record and considered the submissions of the learned counsel for appellant. 7. The suit was instituted in the year 2018. As evident from the pleadings and the impugned order, after the defendant filed written statement, issues were settled on 20.08.2018. Since then, the matter underwent multiple adjournments for plaintiff’s evidence, but the plaintiff did not lead any evidence, either by examining himself or any other witness. While such past conduct may not be relevant for deciding an application under Order 9 Rule 9 CPC, it is undisputed that the appellant/plaintiff did not lead any evidence until the suit came to be dismissed for default on 17.12.2021. 8. In P. Chandrakala v. Karnataka State Industrial and Development Corporation Limited and others1, a Division Bench of this Court, while dealing with an appeal arising out of dismissal of application under Order 9 Rule 9 C.P.C., referred to the judgment of the Hon’ble Apex Court in G.P. Srivastava v. R.K. Raizada2 and observed as follows: “17. So, with respect to the provisions of Order 9 Rule 9 CPC we have to consider the cause shown for the 1 2024 SCC OnLine AP 3863 2 (2000) 3 SCC 54 5 CGR,J C.M.A.No.355 of 2024 non-appearance of the appellant when the suit was called on for hearing i.e., on the particular date i.e., which is 04.07.2023. 18. In G.P. Srivastava (1st supra), the Hon„ble Apex Court held as under: “7.Under Order 9 Rule 13 CPC an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non appearance refers to the date on which the absence was made a ground for proceeding ex- parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non appearance of the defendant on the date fixed for hearing when ex-parte 6 CGR,J C.M.A.No.355 of 2024 proceedings initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 19. The said judgment is under Order 9 Rule 13 CPC. However, from reading of both the provisions, Rule 13 & Rule 9 of Order 9, it is evident that in both, the applicant has to satisfy the Court that there was sufficient cause for non-appearance when the suit was called on for hearing.” 9. Thus, while it is well established that Courts should adopt a liberal approach in considering applications under Order 9 Rule 9 of CPC, the same does not absolve the plaintiff from the fundamental obligation to demonstrate sufficient cause for his non-appearance on the date of dismissal of the suit. 10. In the present case, the reason or explanation offered by the appellant/plaintiff for his non-appearance on the particular day was that he was suffering from fever. The trial Court has considered the said plea and disbelieved the same, in the absence of any medical record to substantiate the said plea. It is further evident from the 7 CGR,J C.M.A.No.355 of 2024 impugned order that even conditional orders were passed for commencement of trial. Since the plaintiff has failed to demonstrate sufficient cause for his non-appearance on the relevant date, the trial Court has rightly declined to exercise its discretion in setting aside the order of dismissal of the suit for default. Having considered the matter in its entirety, this Court finds no perversity in the reasoning or conclusion of the trial Court, warranting interference. 11. Accordingly, this civil miscellaneous appeal, being devoid of merit, hereby stands dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed. _____________________________________ JUSTICE CHALLA GUNARANJAN Date: 23.09.2025 IBL 8 CGR,J C.M.A.No.355 of 2024 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN C.M.A.No.355 of 2024 Dt: 23.09.2025 IBL