ORDER:

This Civil Revision Petition is filed under Article 227 of Constitution of India, aggrieved by the order in I.A.No.30 of 2018 in I.A.No.457 of 2016 in O.S.No.247 of 2015, dated 22.02.2019 passed by the Principal Junior Civil Judge Cum Judicial Magistrate of First Class, Yellamanchili.

2. The brief facts of the case are that the petitioner herein is the respondent/defendant and the respondent herein is the petitioner/plaintiff, who filed the suit in O.S.No.247 of 2015 for specific performance of agreement of sale before the Court of Principal Junior Civil Judge Cum Judicial Magistrate of First Class, Yellamanchili (for short “trial Court”). The said suit was dismissed for default on 29.07.2017, as such, the respondent filed I.A.No.457 of 2016 under IX Rule 9 of the CPC and the same was also dismissed for default on 29.12.2017 for non-payment of costs. Thereafter, on 04.01.2018 the respondent filed the I.A.No.30 of 2018, for restoration of I.A.No.457 of 2016 by contending that on

29.12.2017, as he fell sick, he unable to comply the condition imposed by the Court. After hearing both sides, the trial Court allowed the said application, on payment of costs of Rs.1000/- to the petitioner herein. Challenging the said order, the present Civil Revision Petition came to be filed by the petitioner/respondent.

4. Heard Sri Ramana Allu, learned counsel for the petitioner and Sri B.Shaik Mohd Aquib Hussain, learned counsel for the respondent.

5. During hearing, the learned counsel for the petitioner submits that the respondent filed the I.A.No.30 of 2018 under order IX Rule 9 and r/w. Section 151 of the C.P.C., thereby, praying to restore the dismissal order dated 29.12.2017 and the said provision arise only where the suit exists that is pending, but here no such suit is pending as it was dismissed for default at the stage of processing of notices, hence, said provision is not applicable to the present case. At first instance the suit was posted for fresh summons on 29.04.2016, but the respondent intentionally failed to process the same within stipulated period. Again the same was posted to 08.06.2016, even on the date, the respondent failed to pay process, as such, the suit is liable to dismissed for default. Subsequently, the respondent filed an application for restoration of the suit vide I.A.No.457 of 2016 and the same was also dismissed for default on 29.12.2017, so he filed I.A.No.30 of 2018, it appears that to drag on the matter for years and years and the respondent takes plea that on the date of adjournment, he fell sick, but he did not produce any documents and prays this Court to allow this Revision Petition. In support of his contentions, he relied upon the following judgments: -

(1) D.Devadanam Vs. M.Jnana Prakasam and another1 wherein the Hon’ble Apex Court held that: ”In the present case, the plaintiff admittedly did not pay the necessary charges for sending the summons even when the suit was dismissed. In other words, his default continued for a period of more than 3 months from the date of the order of the court. It must therefore, be held that the dismissal of the suit was under Rule 5 and not under Rule 2 of Order IX CPC and for that reason, the petition for restoration is not competent in law.”

1 CRP 1289 OF 1975

(2) Vishwanath Satwaji Gaikwad Vs. Laxman Abaji Kawale and others2 Wherein the Bombay High Court held that: -

“17. It is already pointed out that the application presented by the plaintiff for setting aside the order of dismissal of the suit as against defendant No. 2 is not disclosing any reasonable or sufficient cause. On the contrary, it clearly indicates that the plaintiff had altogether neglected to take proper steps within the prescribed period. So, from factual aspect also, in the present case, the Court had no ground to exercise inherent jurisdiction. The application, therefore, was rightly rejected by the learned Civil Judge.”

6. On the other hand, the learned counsel for the respondent submitted that du