IMPORTANT POINT
Restoration of suit dismissed for non-appearance – If cause shown is taken to be sufficient then application is to be allowed – Prior conduct or subsequent conduct of a party to suit in these type of cases do not merit for consideration.

JUDGMENT

Plaintiff in the suit has come up with this Civil Miscellaneous Appeal under Order XLIII Rule 1 CPC as he failed to convince the Court about his absence on the appointed day which resulted in dismissal of his suit for default and his prayer for restoration was denied.

2. Respondent No.1 was the sole defendant before the learned trial Court and it seems he died during the pendency of these proceedings here and respondent Nos.2 to 4 have been brought on record as legal representatives.

3. Learned counsel on both sides submitted arguments. Learned counsel for appellant cited Kamla Bai v. Harishankar Arora, 2010 15 SCC 454. On considering the submissions on both sides and on perusal of the record, the point that falls for consideration is:—

Did the appellant show sufficient cause for his absence before the learned trial Court on 22.12.2016, yet the learned trial Court failed to consider the same and reached to improper conclusions which are against law.

Point answered

4. O.S.No.201 of 2010 is a suit filed for specific performance of an agreement for sale with an alternative relief of refund of money and for costs and such other reliefs. It was based on an agreement for sale dated 02.03.2006 concerning AC 0.90 cents of land in survey No.260/1 at Anandapuram Village. Defendant made appearance and filed written statement. Learned VII Additional District Judge, Visakhapatnam settled the issues and put the suit for trial for recording of evidence. It is stated by both sides that the trial Court commenced the trial and during the course of evidence, plaintiff as PW.1, the subject matter agreement for sale came for consideration with reference to its stamp duty and penalty and in that regard, by the order of the trial Court, the document was forwarded to District Registrar for evaluation and calculation and collection of stamp duty and penalty. It is undisputed that the said document was not received back by the trial Court which forwarded the document. While so on 22.12.2016, on finding absence of the plaintiff/PW.1, the learned trial Court dismissed the suit for default. Seeking restoration of it, an application under Order IX Rule 9 CPC was filed by the plaintiff as per I.A.No.1454 of 2017 on 05.01.2017 which was well within the 30 days time. Notice in that application was taken out to respondent/defendant but the respondent did not file any counter and did not participate in the enquiry. After hearing the learned counsel for plaintiff/petitioner therein and after considering the material on record, by an order dated 04.08.2022, learned trial court dismissed the said application. Aggrieved of it, the plaintiff has come up with this Civil Miscellaneous Appeal.

5. A perusal of the sworn affidavit of the appellant filed in support of his I.A.No.1454 of 2017 do indicate the correspondence that was there between plaintiff and the District Registrar with reference to the exact amount of stamp duty and exact amount of penalty and the method and manner in which the payments were to be remitted. The sworn affidavit further indicates that on 22.12.2016, when the trial Court had the suit on bench, the matter was represented on behalf of the plaintiff, explaining the correspondence between the plaintiff and the District Registrar and on hearing those submissions, the learned trial Court allegedly kept aside the case bundle with a view to verify the correspondence and take a decision. According to the sworn affidavit, during the course of the day, the matter was once again called and it found no representation. The learned trial Court dismissed the suit for default. The affidavit narrates that the plaintiff/appellant during that day went to Bheemunipatnam and therefore he could not attend the Court when it was dismissed. It is undisputed before this Court that Order IX Rule 9 CPC permits the Court to scrutinise the facts confined to the date on which the matter was called and the cause of non-appearance of the party. If the cause shown i