HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT

The present appeal has been filed aggrieved by the order dated 26.12.2024 passed in I.A.No.66 of 2023 in O.S.No.1258 of 2017, on the file of the III Additional District Judge, Ranga Reddy at L.B. Nagar

2. Heard Sri B.N. Swamiji, learned counsel for appellant and Sri A. Ramakrishna Reddy, learned counsel for respondent No.2.

3. Appellant herein is plaintiff and respondents herein are defendants before the trial Court. For convenience, the parties hereinafter the parties are referred to as they were arrayed before the trial Court.

4. The brief facts of the present appeal are that the plaintiff filed O.S.No.1258 of 2017 for specific performance of Agreement of sale, against the defendants. Defendants entered appearance and filed written statement denying the averments in the plaint. Issues were framed and matter was coming up for trial since 27.01.2022 the plaintiff had been taking time for adducing evidence and finally the matter was posted to 03.01.2023 conditionally. On 03.01.2023, plaintiff failed to adduce evidence and there was no representation on his behalf, therefore, trial Court dismissed the suit for default. Later, plaintiff filed I.A.No.66 of 2023, under Order IX, Rule 9 read with Section 151 of C.P.C., to set aside the dismissal order dated 03.01.2023 and restore the suit. In the affidavit, filed in support of the application, it was averred that plaintiff was out of station and learned Senior Counsel was hospitalized and the junior counsel was held up in another Court and therefore, no alternative arrangement was made to represent the matter and that non-representation was neither intentional nor wanton.

5. Defendants filed counter resisting the aforesaid application and contended that reasons stated by the plaintiff are untenable and not acceptable, therefore, application is liable to be dismissed. It was further averred that suit was coming up for trial since 27.01.2022, and the plaintiff was not present before the Court to proceed with the case and despite the conditional order, plaintiff failed to adduce the evidence and was protracting the matter to harass the defendants

6. The trial Court, on due consideration of the pleadings and submissions made by both the parties, dismissed the said application vide impugned order dated 26.12.2024 with an observation that despite taking nearly one year time, plaintiff failed to commence trial and has been taking time on one pretext or other, which clearly shows that plaintiff is not diligent in prosecuting the case and thus, dismissed the application. Aggrieved by the impugned order dated 26.12.2024, present Civil Miscellaneous Appeal is filed.

7. Learned counsel for the appellant contended that counsel on record for plaintiff was hospitalized for treatment of glaucoma and his junior was held up in another Court and therefore, they could not represent the matter before the trial Court on 03.01.2023. He further submitted that despite explaining the reasons for non- appearance, trial Court has dismissed the application erroneously. Learned counsel further contended that appellant is ready to commence trial, without taking further time on any date and also ready to comply with any condition which may be imposed by this Court and prayed to allow the appeal.

8. Per contra, learned counsel for respondent No.2 contended that suit was coming up for trial since 27.01.2022 and plaintiff had been taking time on one pretext or other and despite the conditional order, plaintiff failed to commence trial on 03.01.2023 and there was no representation on behalf of plaintiff, therefore, trial Court has rightly dismissed the suit for default. Learned counsel further contended that counsel for the plaintiff could not represent the matter as he has hospitalized, however, plaintiff was not diligent in prosecuting the case and no valid reasons have been shown for the absence of the plaintiff, despite posting of the case conditionally, which clear