JUDGMENT: -

This Civil Miscellaneous Appeal is preferred under Order 43 Rule 1 of CPC against the impugned order in I.A. No.1451 of 2008 in O.S. No.1 of 2008 dated 15.04.2009 on the file of I Additional District Judge, Guntur (Special Court-cum-Tribunal constituted under the provisions of Electricity Act, 2003).

2. Appellant herein was the petitioner/plaintiff. Respondents Nos.1 and 2 were the defendant Nos.1 and 2 before the Trial Court.

For the sake of convenience, the parties hereinafter will be referred to as they arrayed before the learned Court.

3. The case of the appellant in brief is that, The petitioner herein is the consumer of the electrical service SC No.6167 provided by the respondents herein. The 1st respondent Assistant Divisional Engineer issued provisional assessment notice dated 14.12.2007 demanding Rs.1,76,549/-. Questioning the notice of provisional assessment, the petitioner filed O.S. No.1/2008 before the I Additional District Judge, Guntur – cum-Tribunal constituted under the provisions of the Electricity Act, 2003 and sought for reassessment. The respondents herein were set exparte in the suit. Thereafter, the suit was dismissed for default on 18.09.2008. The petitioner filed interlocutory application being I.A. No.1451/2008 under Order 9 Rule 9 of CPC for restoration of the suit. In the said application, notice was ordered to the respondents and heard both parties. At that stage, this application was dismissed for default through docket order dt.15.04.2009.

4. Heard the learned counsel on both sides.

5. Now the point that would emerge for determination is Whether the impugned order is sustainable under law or any interference is warranted in appeal?

6. (a) Learned counsel for the appellant would submit that the learned trial Judge heard the petitioner and also the respondent. Thereafter, both parties requested the Court to refer the matter to Lok Adalath on 15.04.2009. On 15.04.2009 the impugned order shows as both parties called absent, the petition is dismissed. The impugned order is not sustainable under law since they have submitted their arguments much earlier to the date of order.

(b) Learned counsel for the respondents fairly conceded that when the matter is referred to Lok Adalath, dismissing the petition for default is not tenable.

7. POINT A cursory look in to the impugned order indicates that the petitioner being the plaintiff, filed a suit for determining the actual connected load and actual consumption charges seeking to hold that the Revised Provisional Assessment Notice bearing No.ADE/O/T2/GNT/F/D.No.2787 dated 14.12.2007 is without any basis, and that the defendants are not entitled to collect the amount covered by the Demand Notice and that consequently permanent injunction against the defendants may be given liberty of collecting any amount based on the Demand Notice and threat of disconnection. The suit was dismissed for default as there was no representation. The plaintiff filed the petition I.A. No.1451 of 2008 under Order 9 Rule 9 of CPC for restoration of the suit immediately.

8. It is relevant to extract Order 9 Rule 9 of CPC.

9. Decree against plaintiff by default Bars fresh suit:-

(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

9. The language employed in the provision referred supra indicates that, if sufficient cause is shown, the suit needs to be restored.

10. In the present case, the impugned order is bereft of any