JUDGMENT :

The Civil Miscellaneous Appeal is filed against the Order dated 27.03.2023 made in I.A.No.61 of 2022 in O.S.No.330 of

2015 on the file of learned Additional Senior Civil Judge, Ongole.

2. Heard Mr.Pavan Kumar Pasupuleti, learned counsel for the petitioner as well as Mr.P.Kamalakar, learned counsel for the respondents. Perused the material on record.

3. Learned counsel for the petitioner submits that the trial Court erred in dismissing the petition filed by the petitioner/plaintiff for restoring the suit on to file by setting aside the default dismissal order dated 19.01.2021 without considering the legal possession. He submits that the trial Court failed to consider the case of the appellant, though the reasonable grounds were mentioned for restoring the suit. He further submits that the appellant, due to Covid-19, he could not give instructions to his counsel in the lower Court. He submits that as per instructions of the Hon’ble Supreme Court order in Suo-moto Court Petition 03/2020, the trial Court should not dismiss the suit for default. He also submits that the trial Court mentioned reasons for dismissing the suit are that the plaintiff did not file his chief examination affidavit to prove the bonafides of the plaintiff in prosecuting the suit. Later, the plaintiff filed his chief examination affidavit, but it was returned by the trial Court for the reason that “how this petition is maintainable as the petition under Section 151 CPC is dimissed”, hence returned. He finally submits that without allowing the amendment petition, the plaintiff cannot file the chief examination affidavit. However, when the trial is commenced the plaintiff could not file amendment petition and the trial Court erroneously considered the contents of the Respondent No.7 counter, though the Respondent No.7 filed his counter after one year of filing the petition.

4. On the other hand, learned counsel for the respondents while denying the averments made in the appeal, submits that the appellant did not file his chief-examination affidavit and there is no documentary proof relating to Covid-19 effect. He further submits that the appellant/plaintiff has willfully and negligently failed to attend before the Court though there is a conditional order.

5. Considering the submissions of both the counsels, this Court is inclined to direct the petitioner to file his Chief- affidavit in O.S.No.330 of 2015 on the file of learned Additional Senior Civil Judge, Ongole, on or before 28.08.2023 on payment of costs of Rs.1,000/- (Rupees One thousand only) to the credit of O.S.No.330 of 2015, failing which, this order shall stand dismissed and the trial Court order would subsist.

6. With the above directions, the Civil Miscellaneous Appeal is disposed of.

As a sequel, interlocutory applications, if any pending, shall stand closed.

_____________________ DR. K. MANMADHA RAO, J.

Date : 16-08-2023 BMS H ON’BLE DR.JUSTICE K.MANMADHA RAO C.M.A.No.258 of 2023 Date : 16-08-2023 BMS