This civil miscellaneous appeal is filed as against an order made in I.A.No.289 of 2005 in O.S.No.225 of 2004 on the file of II Additional Senior Civil Judge, Nellore, dated 25th October 2005.

2. Appellant herein petitioner-plaintiff filed the aforesaid application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure (hereinafter in short referred to as ‘the Code’ for the purpose of convenience) praying for restoration of the suit which was dismissed for want of representation on 01.8.2005. Respondentdefendant resisted the application and the learned judge, after recording certain reasons, arrived at a conclusion that there are no grounds to allow the application and accordingly dismissed the said application. Aggrieved by the same, the present civil miscellaneous appeal is preferred.

3. Smt. Ramani Jonna, learned counsel representing the appellantplaintiff made the following submissions.

The learned counsel would contend that the dismissal of the application on the ground that the affidavit of the plaintiff was not filed in support of the application cannot be sustained for the reason that the advocate on record who had sworn to the affidavit had knowledge about the facts to be sworn in the said affidavit and hence the non-filing of affidavit of the plaintiff in support of the application cannot be made a ground to dismiss the said application. The learned counsel also had placed respective pleadings of the parties before this Court and had pointed out to the averments made in paragraphs 2, 3, 4 and 5 of the written statement and would contend that the execution of promissory note in question in favour of K.Chandrasekhara Reddy is not in serious dispute and the fact that the appellant - plaintiff as holder in due course on the strength of the transfer made by the K.Chandrasekhar Reddy had instituted the suit also is not in serious dispute. In the light of such admissions made even if there is some negligence on the part of the counsel representing the plaintiff or the plaintiff, as the case may be, instead of dismissing the suit as such atleast a decree could have been passed on the strength of such admissions in the light of Order IX Rule of the Code. The learned counsel placed strong reliance on the decision of this Court in G.SATYANARAYANA VS. M.SHANKAR(1) and also the decision of the Apex Court in CALCUTTA PORT TRUST V. SHALIMAR TAR PRODUCTS LTD., (2).

4. Per contra, Sri K.Sudarshan Reddy, learned counsel representing the respondent would submit that this is not a case to interfere with, especially, in the light of conduct of the parties. The learned counsel would submit that it is not as though the parties to the litigation are illiterate. They know the consequences and deliberately the plaintiff did not attend the court and though the matter was adjourned on payment of costs, the said amount also was neither paid nor deposited. In the light of the said conduct, the application itself cannot be said to be a bona fide one. The learned counsel while further elaborating his submissions would maintain that the ground that the counsel was engaged in yet another court cannot be made a ground while praying for restoration of the suit. Even otherwise the party had not sworn to the affidavit, but the advocate on record had sworn to the affidavit filed in support of the said application. Strong reliance was also placed on the decision in AMIN LAL V. SHIB DAYALAND OTHERS(3).

5.Heard the counsel.

6. The appellant herein the plaintiff in O.S.No.225 of 2004 filed the said suit as against the respondent-defendant for recovery of amount on the strength of a promissory note. The respective pleadings of the parties need not be dealt with at length, but however, it is suffice to state that even in the written statement filed by the respondent-defendant, the execution of the promissory note in question in favour of Chandrasekhara Reddy had not been put into issue. In other words, there is no serious controv