COMMON ORDER:

1. I.A.No.1 of 2012 is filed by petitioner / appellant seeking to set aside the order of dismissal dated 12.09.2011 in A.S.S.R.No.1580 of 2011.

2. The petitioner/appellant also filed an application vide I.A.No.1 of

2022 in A.S.S.R.No.1580 of 2009 seeking to receive the additional affidavit for better adjudication of the case.

3. Heard Sri Mahadeva Kanthrigala and Sri K.Ram Mohan, learned counsels for the petitioner/appellant and Sri Addepalli Suryanarayana, learned senior counsel for the 1st respondent/

plaintiff in both the I.As.

4. The petitioner’s case in I.A.No.1 of 2012 (A.S.M.P.No.6141 of

2012) that he filed the appeal suit aggrieved by the decree and Judgment dated 17.11.2006 in O.S.No.40 of 2005 on the file of the I Additional District Judge, Visakhapatnam, wherein the Hon’ble Court passed an exparte decree in favour of the 1st respondent herein.

(a) The petitioner contends that the appeal was scheduled for hearing before this Court on 12.09.2011. However, without his instruction or knowledge, his counsel made a representation leading to the withdrawal of the appeal. The petitioner asserts that he never instructed his previous counsel to withdraw the appeal, and therefore, he was unaware of such action taken on his behalf. Consequently, the petitioner claims that he has no knowledge of the order pertaining to the withdrawal of the appeal. (b) The petitioner alleges that the 1st respondent, in connivance with other defendants, engaged in fraudulent conduct. They initiated a suit against him by intentionally misrepresenting his address, substituting it with the address of his vendors in the cause title. Moreover, they obtained an ex parte decree without even serving him with the necessary summons.

5. In I.A.No.1 of 2022, the petitioner/appellant requested to receive the additional affidavit, wherein he referred the defence relating to the suit.

6. The 1st respondent argues that the sole basis for the defendant No.7's in appeal is that he was not served with the suit summons and thus could not partake in the proceedings. However, the 1st respondent asserts that this statement is misleading. The learned Judge scrutinized the appellant's conduct and took strong notice of it. On 12.09.2011, the appellant's previous counsel sought oral permission for withdrawal, and the High Court, adopting a lenient approach, granted permission and dismissed the appeal as withdrawn on the same date.

7. I have heard both sides and carefully perused the record.

8. Now the point for determination is:

Whether the petitioner established the grounds to set aside the order of dismissal dated 12.09.2011 in A.S.S.R.No.1580 of 2009?

9. For better appreciation of the material on record, I reproduce the order passed by this Court which reads as follows:

“Today when the matter is taken up for hearing, the learned counsel for the appellant seeks permission of the Court to withdraw the appeal. Permission is accorded.

In the result, the appeal is dismissed as withdrawn. No costs.”

10. As already noted, the main ground urged in the petition is that he has not instructed his counsel to withdraw the appeal. As rightly pointed out by the counsel for the 1st respondent that the petitioner/appellant has not filed any affidavit of the earlier counsel in this regard. It seems that the appellant had not served any notice on the earlier counsel to withdraw the appeal without his instruction. Had there been a truth in the appellant’s contention, he would have taken appropriate action against his earlier counsel. The counsel for the 1st respondent relied on a decision in Jagtar Singh Vs. Pargat Singh and others1, wherein the Apex Court held that:

Order III Rule 4 of C.P.C empowers the counsel to continue on record until the proceedings in the suit are duly terminated. The counsel, therefore, has power to make a statement on instructions from the party to withdraw the appeal. The question then is whether the Court is required to pass a reasoned order on merits against the