The court held that Order IX Rule 9 CPC should be interpreted liberally in order to do substantial justice rather than being struck on technical rigidities.

JUDGMENT

1. The unsuccessful petitioner/plaintiff filed the present C.M.A. impugning the order dtd. 5/8/2015 in I.A.No.2017 of 2005 in O.S.No.1421 of 2003 on the file of the learned Principal Senior Civil Judge at Visakhapatnam, wherein a petition filed for restoration of suit that was dismissed for default, was dismissed. The Respondent herein is the Respondent/Defendant in the O.S. Procedural History:

2. The contention of the plaintiff in I.A.No.2017 of 2005 (hereinafter 'restoration petition') is that he suffered from viral fever during 27/9/2005 to 30/9/2005, as such he could not appear before the Court on 29/9/2005. In addition, his nephew by name V. Avinash was also admitted for surgery in Seven Hills Hospital, Visakhapatnam. He further submits that his absence was neither wanton nor deliberate, therefore his prayer to restore the suit should be allowed.

3. Refuting the petitioner's case, the respondent/defendant filed counter to the I.A. to the effect that since a plea that suit is barred by limitation was taken, the plaintiff avoided to attend and ultimately got the suit dismissed for default. He further contended that no document is filed to show about the ill health of the plaintiff and the suit is indeed a counter-blast to their claim before District Consumer Forum, West Godavari District, Eluru. Therefore, sought for dismissal of the petition.

4. After hearing both sides, the learned trial Judge vide an order dtd. 5/8/2015, dismissed the petition on the ground that petitioner failed to explain sufficient cause in not appearing before the Court on the date of hearing of suit and further observed that no medical certificate was filed in support that he was suffering from viral fever and his relative was at hospital. Aggrieved by the dismissal order, the petitioner/plaintiff preferred the C.M.A.

5. Heard the learned counsel for the Appellant. None appeared for the Respondent to submit their objections, despite service of notice. Needless to say, irrespective of objections or defense taken by the other side, it is the duty of the Court to examine the sustainability of the impugned Order under law.

6. Learned counsel for the appellant in elaboration to what was stated in the Grounds of Appeal contended that the learned trial judge failed to appreciate that the restoration petition is filed within time along with the evidence affidavit, indicating his readiness to commence the trial. He further contended that the learned trial judge erroneously dismissed the petition by observing that the petitioner has not filed any evidence to show that he suffered from viral fever. Point for Determination:

7. The point for determination in this C.MA. isWhether the Order under challenge is sustainable under law or it warrants any interference of this Court in this Appeal? Legal Analysis & Findings:

8. Before going to the merits of the case, it would be relevant to extract Order IX Rule 9 of the Code of Civil Procedure (C.P.C.): ORDER IX- Appearance of parties and consequence of non-appearance Rule 9. Decree against plaintiff by default bars fresh suit:-

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

9. Order IX of C.P.C. deals with "Appearance of parties and consequence of non-appearance." Order IX Rule 9 of the C.P.C. provides for restoration of suits dismissed under Order IX Rule 8 for non-appearance. When once a suit is dismissed wholly or partly, the plaintiff is precl