Or. 9, rule 9 C.P.C. = Restoration of of suit dismissed for default as she was admitted in Hospital on that day, can be allowed when other side has not filed any counter - Lower court should not dismiss the I.A. simply because the advocate not accepted for imposing of costs - appears fallacious - Lower court orders are set aside - I. A. allowed =
The occasional absence of the appellant on a particular date resulted in dismissal of the suit for default. In her affidavit filed in support of the C.M.P., the appellant states that she was hospitalized on account of acute Asthama. The respondents did not file any counter contradicting the same. The trial Court, however, passed a peculiar order. The gist thereof is that the appellant did not agree for imposition of costs, as a condition for restoration of the suit, and on that basis, the I.A. was dismissed. We find that the approach of the trial Court was totally fallacious. In case it found that the reasons pleaded by the appellant for restoration of the suit are satisfactory, the I.A. ought to have been allowed. Further, even if the Court was inclined to pass a conditional order, directing the appellant by imposing the costs, it was not necessary to get the consent of the appellant for that purpose.
Hence, the appeal is allowed and the order under appeal is set aside.
| CMA 187 / 2013 | CMASR 4272 / 2013 |
|
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE S.V. BHATT
C.M.A.No.187 of 2013
JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
The appellant herein filed O.S.No.217 of 2008 in the Court of the V Additional District Judge, Vijayawada against the respondents for the relief of specific performance of an agreement of sale.
The suit was dismissed for default on 28.07.2011. The appellant filed I.A.No.1482 of 2011 under Order 9 Rule 9 C.P.C., with a prayer to set aside the order, dated 28.07.2011. It was pleaded that on account of her ailment with Asthama and consequent hospitalization, she could not attend the Court on the relevant date. The trial Court dismissed the I.A. through order, dated 31.12.2012. Hence, this appeal.
Heard the learned counsel for the appellant and the learned counsel for the respondents.
The occasional absence of the appellant on a particular date resulted in dismissal of the suit for default. In her affidavit filed in support of the C.M.P., the appellant states that she was hospitalized on account of acute Asthama. The respondents did not file any counter contradicting the same. The trial Court, however, passed a peculiar order. The gist thereof is that the appellant did not agree for imposition of costs, as a condition for restoration of the suit, and on that basis, the I.A. was dismissed. We find that the approach of the trial Court was totally fallacious. In case it found that the reasons pleaded by the appellant for restoration of the suit are satisfactory, the I.A. ought to have been allowed. Further, even if the Court was inclined to pass a conditional order, directing the appellant by imposing the costs, it was not necessary to get the consent of the appellant for that purpose.
Hence, the appeal is allowed and the order under appeal is set aside. We allow I.A.No.1482 of 2011 and set aside the order, dated 28.07.2011, through which the suit was dismissed for default. As a result, the suit shall stand restored to file. There shall be no order as to costs.
The miscellaneous petition filed in this appeal shall also stand disposed of.
______________________
L. NARASIMHA REDDY,J
______________________
S.V. BHATT,J
Dt:16.08.2013
kdl
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