THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA CIVIL MISCELLANEOUS APPEAL.NO. 412 OF 2013

JUDGEMENT:

This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of Code of Civil Procedure, 1908 (herein referred as CPC), being aggrieved by the orders dated 15.02.2013 passed in I.A.No.675 of 2012 in O.S.NO.02 of 2001 by Ist Additional District Judge, Medak at Sangareddy, wherein in I.A. filed under Order 9 Rule 9 read with Sec.151 Code of Civil Procedure, 1908 was dismissed. Being aggrieved by the same, the present appeal is filed.

2. The brief facts of the case are that the plaintiff herein has filed a suit for partition and separate possession of the suit scheduled property against the respondents/defendants Nos.1 to 8 initially, and subsequently impleaded the defendants Nos.9 to 13. The case of the appellant/plaintiff was that when the matter was posted for trial on 05.06.2012, on the said date the senior counsel was out of station on his personal work, and though the junior counsel was present and sought for an adjournment, since there was a direction from the High Court, the trial Court recorded the said representation, and dismissed the suit. The said dismissal was challenged, contending that the absence of the plaintiff/appellant on 05.06.2012 and failure to file the evidence was neither willful nor wanton, and it was prayed that the application be allowed.

3. The respondents filed a counter denying the genuineness of the averments made in the petition and contended that ample opportunities were given to the plaintiff to commence the trial, but they did not choose to get ready. Though earlier under similar circumstances the suit was dismissed, a restoration application was filed along with an application to condone the delay of 1348 days. The said I.A. was dismissed by the trial Court, against which CRP No.590 of 2011 was filed, and the said CRP was allowed by the this High Court by taking a lenient view and by imposing the cost of Rs.1,500/-. It is further contended by the respondent that ample opportunities were given to the plaintiff, but they did not utilize the same to commence the trial. In view of the above, he supported the order passed by the learned Judge, stating that the same was passed after giving ample opportunity to the plaintiff and also by observing the conduct of the plaintiff therein.

4. Having heard Sri. J.Venkateswara Reddy, learned counsel for the petitioners and Sri Nizampur Chandra Sekhar, learned counsel for the respondents.

5. Having perused the entire material placed on record, the petition affidavit and the order passed by the learned trial Court Judge, the learned counsel for the petitioner has contended that on the said date, the plaintiff could not be present but immediately after the dismissal of the suit, within 10 days, the petitioner came up with an application under Order 9 Rule 9 along with the supporting affidavit of the plaintiff. He further contends that the said suit is for the relief of partition and that valuable rights of the plaintiff will be affected if the suit is not restored back to file. The learned counsel for the respondent has argued and contended that though the petitioner was provided ample opportunities, the plaintiff did not choose to utilize the same or get ready with the application, and considering his conduct, the suit was dismissed and stated that this being the second instance of dismissal, no lenience can be taken in the present case

6. Having considered the contentions and rival contentions of both the parties, as it is seen, admittedly the said suit is for partition filed in the year 2001 and today we are in the year 2025. On record, the ages of the parties in the said suit are that the plaintiffs are aged between 43–45 years and the defendants are aged between 29–70 years, i.e., as on the date of filing of the suit in the year 2001. Though the learned counsel for the petitioner contended that the present suit is for partition and their valuable rights are