APHC010208172019 IN THE HIGH COURT OF ANDHRA PRADESH [3329]

AT AMARAVATI (Special Original Jurisdiction)

TUESDAY,THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.M.A.No. 466/2019 and C.R.P.No.1932 of 2019 C.M.A.No.466/2019 Between:

1. R AJANA ANTHONAMMA, W/O ARJUNA, AGED 43 YEARS, HOUSEHOLD DUTIES, RESIDING AT D.NO.36- 96-46, RAMJEE ESTATE, KANCHARAPALEM, VISAKHAPATNAM ...APPELLANT AND

1. G ANDRETI MARIAKUMAR, S/o Late G. Jolayya, aged 28 years, working in Naval Base, Visakhapatnam, Rio D. No. 39-96-47, Ramjee Estate, Kancharapalem, Visakhapatnam.

...RESPONDENT Appeal Under Section_____against ordersMemorandum of Civil Revision Petition against the order and decree dated 02.04.2019 passed in I.A. No. 737 of 2017 in AS No. 35 of 2017 on the file of the Court of the Special Sessions Judge for Trial of Cases under SCs and STs (POA) Act-cum-XI Additional District and Sessions Judge at Visakhapatnam C.R.P.No.1932 of 2019 Between:

1. R AJANA ANTHONAMMA, W/O ARJUNA, AGED 43 YEARS, HOUSEHOLD DUTIES, RESIDING AT D.NO.36- 96-46, RAMJEE ESTATE, KANCHARAPALEM, VISAKHAPATNAM ...PETITIONER AND

1. G ANDRETI MARIAKUMAR, S/o Late G. Jolayya, aged 28 years, working in Naval Base, Visakhapatnam, R/o D.No. 39-96-47, Ramjee Estate, Kancharapalem, Visakhapatnam.

...RESPONDENT Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toMemorandum of Civil Revision Petition against the order and decree dated 02.04.2019 passed in I.A.No. 736 of 2017 in AS No. 35 of 2017 on the file of the Court of the XII Additional District-cum-SCs and STs Court at Visakhapatnam Counsel for the Appellant: 1. ARRABOLU SAI NAVEEN Counsel for the Respondent:

1.

HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.M.A.No.466 of 2019 AND C.R.P.No.1932 of 2019 This Court made the following

COMMON JUDGMENT:

The present CMA No.466 of 2019 is filed aggrieved by the order dated 02.04.2019 in I.A.No.737 of 2017 in A.S. No.35 of 2017 on the file of Special Sessions Judge for Trial of Cases under SC & ST (POA) Act-cum-XI Additional District Judge, Visakhapatnam wherein the application filed under Order IX Rule 9 to set aside the “dismissed for default” order dated 15.06.2017 and to restore the appeal on the file of lower appellate Court.

2. The C.R.P.No.1932 of 2019 is filed aggrieved by the order dated 02.04.2019 in I.A.No.737 of 2017 on the file of Special Sessions Judge for Trial of Cases under SC & ST (POA) Act- cum-XI Additional District Judge, Visakhapatnam wherein the application filed under Section 5 of Limitation Act, read with 151 of CPC to condone the delay of 90 days in filing the petition under Order IX Rule 9 of CPC has been dismissed.

3. Bothe petitions were heard together since both parties are common in both these proceedings and the issue as well as relief sought by the appellant/petitioner is one and the same.

Therefore, it is appropriate to pass a common order as under:

4. The petitioner/appellant herein is the plaintiff and the respondent herein is defendant in the suit. For the sake of convenience of this Court the parties are referred herein as they were arrayed before the trial Court.

5. The plaintiff filed suit for permanent injunction and for costs. It appears that the said suit was dismissed by way of decree and judgment dated 03.01.2017 in O.S.No.1006 of 2012 but the same was assailed in the month of March, 2017 and the matter was posted to 27.03.2017 for appearance of the defendant. While so, on 15.06.2017 the matter was called for but neither the plaintiff nor his counsel represented the matter. Then the appellate Court dismissed the appeal for non-prosecution on the same day i.e., on 15.06.2017 itself.

6. Learned counsel for the petitioner submits that petitioner filed present I.A.No.737 of 2017 in A.S.No.35 of 2017 under Order IX Rule 9 of CPC praying to set aside the order of default and restore the