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Aman Alli Saheb Vs. K. Venkata Rama Suryanarayana Subba Raju - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1352 of 1982
Judge
Reported inAIR1984AP71
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 9
AppellantAman Alli Saheb
RespondentK. Venkata Rama Suryanarayana Subba Raju
Appellant AdvocateE.S. Ramachandra Murthy, Adv.
Respondent AdvocateP. Ramakrishna Raju, Adv.
Excerpt:
.....with dismissal of application under order 9 rule 9 and directing restoration of suit dismissed for default on 23.08.1981 - reason assigned for absence on 23.08.1981 is that counsel was out of station - restoration is not automatic unless sufficient cause is shown - without assistance of counsel nothing could be done - even if parties were present it does not advance case any further except to adjourn case to future date - held, absence of counsel is sufficient ground for restoring appeal. - - ramachandra murthy, the learned counsel for the petitioner, contends that the whole approach of the appellate court is clearly erroneous. therefore, the view of the appellate court is clearly erroneous. venkataramayya (cited supra) is no longer a good law. in view of the fact that the..........conclusion that the plaintiff-petitioner was prevented from attending court on 23-8-1980 due to sufficient grounds. i hold his absence is not wilful. in the interest of justice and expediency and also in view of the merits of the case, i find this is a fit case to give opportunity to the plaintiff to adduce his evidence and have a contested disposal of the suit.' aggrieved by this order, the defendant-petitioner filed this revision.2. in this revision petition, sri e. s. ramachandra murthy, the learned counsel for the petitioner, contends that the whole approach of the appellate court is clearly erroneous. a division bench of this court in suryanaraya murthy v. ramabhadra raju, 1960 andh lt 904, had held that restoration is not automatic unless sufficient cause is shown. in g. v......
Judgment:
ORDER

1. The petitioner is the defendant. The present Revision arises against the Appellate Order interfering with the dismissal of an application under O. 9, R. 9, C. P. C., and directing the restoration of the suit dismissed for default on 23-8-1981. The reason assigned for the absence on that day is that the counsel was out of station. The plaintiff was unwell and he requested his son to attend the Court but in the meanwhile his scooter developed mechanical defect and therefore he could not reach the Court in time. For the absence of the party the suit was dismissed for default. The petitioner resisted the application for restoration on the ground that the plaintiff did not prove that he was suffering from illness by adduction of medical evidence. The absence of the counsel was not a relevant ground. These contentions prevailed with the trial Court but on appeal the appellate Court reversed that finding thus : 'I came to the conclusion that the plaintiff-petitioner was prevented from attending Court on 23-8-1980 due to sufficient grounds. I hold his absence is not wilful. In the interest of justice and expediency and also in view of the merits of the case, I find this is a fit case to give opportunity to the plaintiff to adduce his evidence and have a contested disposal of the suit.' Aggrieved by this order, the defendant-petitioner filed this revision.

2. In this revision petition, Sri E. S. Ramachandra Murthy, the learned counsel for the petitioner, contends that the whole approach of the appellate Court is clearly erroneous. A Division Bench of this Court in Suryanaraya Murthy v. Ramabhadra Raju, 1960 Andh LT 904, had held that restoration is not automatic unless sufficient cause is shown. In G. V. Venkanna v. M. Venkataramayya, : AIR1981AP199 , this Court had held that the absence of the counsel is not a ground for setting aside the decree and the ratio therein also equally applies to the facts of this case. It is also contended that though the counsel was absent, nothing prevented the respondent to appear in the Court and the reason for his absence being his illness has not been established bymedical evidence. Therefore, the view of the appellate Court is clearly erroneous.

3. On the other hand, Sri Ramakrishna Raju, the learned counsel for the respondent, contends that the finding that there is sufficient cause for the respondent for not attending the Court on 23-8-1980 is a finding of fact based on consideration of the relevant material before the Court and it does not warrant intereference in this revision petition. He also relies upon a decision in Savitri Amma Seethamma v. Aratha Karthy, : AIR1983SC318 , wherein the Supreme Court held that the absence ofh te counsel at the time when the case was called is a sufficient ground to set aside the dismissal order. In view of this decision, the decision of this Court in G. V. Venkanna v. M. Venkataramayya (cited supra) is no longer a good law.

4. Upon these respective contentions, the question that arises for consideration is whether the view of the lower Court is correct. Admittedly, the counsel was away from station on 23-8-1980 when the suit was posted for trial. Without the assistance of the counsel nothing could be done and even if the parties were present, it does not advance the case any further except to adjourn the case to a future date. In view of the fact that the counsel was not in the station on that day, the view of the trial Court that the absence of the parties has not properly explained is clearly erroneous. The lower appellate Court has taken correct view and recorded as a fact that there is sufficient cause for the absence and this is a finding of fact based on appreciation of the evidence. Now, the decision of the Supreme Court referred to above has held that the absence of the counsel is a sufficient ground for restoring the appeal. The ratio therein equally applies to the facts in this case and the respondent has shown sufficient cause for his absence. In view of the decision of the Supreme Court in Savitri Amma Seethamma v. Aratha Karthy (cited supra), the decision of this Court reported in G. V. Venkanna v. M. Venkataramayya : AIR1981AP199 (cited supra) is no longer a good law.

5. Accordingly, the revision petition is dismissed.

6. Revision dismissed.


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