Past conduct of a party cannot be considered when determining 'sufficient cause' under Order IX Rule 9 CPC; medical reasons for absence must be given priority to ensure substantive justice.

JUDGMENT:

The present appeal is preferred against order, dated 02.03.2022, passed in I.A.No.12 of 2020 in O.S.No.572 of 2012 on the file of the VII Additional District and Sessions Judge, Visakhapatnam, rejecting application filed under Order IX Rule 9 CPC seeking restoration of the Suit, which was otherwise dismissed for default.

2. For the sake of convenience, parties herein are referred to as they were arrayed in the Suit before the trial Court.

3. Brief facts of the case are as follows:

Initially sole plaintiff filed Suit against his brothers, their children and subsequent purchasers for declaration of title and recovery of possession. Plaintiff, 1^st defendant, 7^th defendant and 12^th defendant are brothers, who have inherited an extent of 4,200 sq. yards property, however, defendants 1, 7 and 12 have alienated their shares in favour of defendants 18 and 19 for an extent of 2,100 sq. yards and 1,050 sq. yards under possessory agreement of sale with general power of attorney vide registered document Nos.4649/2007, dated 18.05.2007 and 5122/2007. Dated 04.06.2007 respectively. Though an extent of 1,050 sq. yards was left to plaintiff, the same was encroached upon by subsequent purchasers by constructing a compound wall. Thus, it necessitated plaintiff to file Suit for declaration of title and for recovery of possession. The Suit was being contested by filing written statement by respective defendants. Sole plaintiff died pending Suit, thereby his legal heirs i.e. wife and children were got impleaded to pursue the Suit. While Suit was coming up for evidence of plaintiff, i.e., chief-examination of PW.1 and for marking of documents, as 1^st plaintiff did not turn up and the initial request of junior counsel appearing sought pass over and later did not turn up when the matter was called later, resulted in dismissal of the Suit for non-prosecution. Immediately, on 09.01.2020 plaintiffs have come up with petition under Order IX Rule 9 CPC seeking to restore the Suit. The defendants filed counter resisting the same and eventually, after hearing, the trial Court dismissed the said application by order, dated 02.03.2022. Assailing the same, present appeal is filed.

4. Heard Sri G.Ram Gopal, learned counsel for the appellant and Sri T.N.M. Ranga Rao, learned counsel for the contesting respondents.

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5. Learned counsel for the appellant would vehemently contend that trial Court erred in passing order of dismissal by taking into consideration the previous conduct of the plaintiffs, which is not relevant criteria for the purpose of considering the aspect of whether plaintiff was prevented from attending the hearing on a particular date, while considering the expression ‘sufficient cause’ envisaged in Order IX Rule 9 CPC. In support of said submission, he placed reliance on the judgment of erstwhile High Court of A.P. in Garuda Sakuntala v. A.V.M. Jagga Rao (died), 2000 (6) ALT 396 (D.B.). Further, he has also contended that the trial Court erred in not taking into consideration and disbelieving the reasons cited, that of medical grounds which was the cause for not attending hearing on particular day. As plaintiff was suffering from acute enteropathica and was advised bed rest, as per medical certificate produced, the trial Court ought to have considered the same and recalled the order of dismissal by imposing certain costs. Therefore, he would urge that the order of the trial Court be set aside on certain terms enabling the plaintiff to contest the Suit on merits, as otherwise, she would loose substantive rights in canvassing her rights being barre