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Sri I.SRINIVASA MURTHY, Principal Senior Civil Judge, Gudivada

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Sri I.SRINIVASA MURTHY, Principal Senior Civil Judge, Gudivada IN THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE, GUDIVADA Present: Sri I.SRINIVASA MURTHY, Principal Senior Civil Judge, Gudivada. Monday, this the 12th day of October, 2020. IA.No. 194/2019 in OS.213/2010 Between 1.Adapala Veera Venkata Rao, S/o. late Suryanarayana, Hindu, aged about 84 years, residing at D.No.18-5-30, 3rd lane4, …Petitioners/ Kedareswaraopet, Vijayawada, Krishna District. Plaintiffs 2. Adalapa Bhavani Prasad, S/o. Adapala Veera Venkata Rao, Hindu, aged about 52 years, presently residing at Navodaya colony, Mehedipatnam, Hyderabad. 3. Adapala Vijaya bhaskar, S/o.Adapala Veera Venkata Rao, Hindu, aged about 49 years, employment, residing at 9135, Judicial Drive, APT 3209 SAnDiego CA, USA. ( Petitioners NO.2,3 are presented by their father as a General Power of Attorney holder). And 1.Yeraramsetty Setharama Swamy, S/o. late Nageswra Rao, Hindu, aged about 64 years, R/o.Chennuru village, Pedana Mandal, Machilipatnam, Krishna district. 2. Yarramsetty Ranganayakamma, W/o. Srinivasa Rao, Hindu, aged about 49 years, ..Respondents/ R/o.Chennuru village, Pedana Mandal, Plaintiffs Machilipatnam. This petition has come up on 21.09.2020 for final hearing before me in the presence of S.Srinivas, advocate for petitioners and of Sri G.L.N.V.Appaji, advocate for respondents and upon perusing the material on record and the matter having stood over for consideration till this day, this Court has delivered the following: ORDER This petition is filed by the plaintiffs in the suit under Order 9 Rule 9 CPC for setting aside the order dt.18.12.2018 by which the suit was dismissed for default, and to restore the suit to file. 2 2. The case of the petitioners is as follows: The petitioners came to know that the suit was dismissed for default on 18.12.2018 on the ground that they were called absent and there was no representation and that the petitioners further came to know that the advocate commissioner appointed in the suit has returned the warrant entrusted to him stating that petitioners were not cooperating with him. In fact, the advocate commissioner did not issue notice to the petitioners. In fact, when the 1st petitioner could not come in contact with their junior advocate representing the suit in OS.51/2011 filed by the 1st respondent herein, he sent his son by name A.Vasantha Kumar, who was locally available at Gudivada on 03.01.2019 and came to know that the present suit was dismissed for default on 18.12.2018 through some other advocate who assisted him to note the progress in the above said suit. Petitioner came to know that their advocate Smt.Yamini Devi could not represent the case on the date when the matter was called in view of her sickness. Due to the old age and ailments of the 1st petitioner, 1st petitioner could not appear before the court on 18.12.2018. His son was not in India on the date of the suit and he has been staying in USA. 2nd petitioner gave power of attorney to 1st petitioner and he is in Telangana State. Thus, 1st petitioner has been looking after the affairs of the suit. As the 1st petitioner was on the impression that his local advocate would inform him about the progress of the proceedings, 1st petitioner could not appear before the court. Except the said reasons, there is no willful default or negligence on the part of the 1st petitioner. Since valuable property rights are involved and the present suit is connected with OS.51/2011, an opportunity may be given to the petitioners to lead evidence and to submit the contentions. 3 3. Respondents filed their counter, opposing the petition and, inter alia, alleging as follows: 1st petitioner is aware of the suit proceedings and its progress as seen from the docket of the court. The advocate commissioner was appointed long back on 25.07.2013 by the court and at the request of the petitioners, the matter stood posted to 27.08.2013 for report of the commissioner and later it was postponed to various dates. Meanwhile, the matter was carried to the Hon'ble High Court and stay was granted. On disposal of the CRP, the stay was vacated and the matter stood posted for report of the commissioner on 4.12.18, 6.12.2018, 12.12.2018 and 14.12.2018. On 14.12.2018, the advocate commissioner returned the warrant stating that the parties are not cooperative and, therefore, this court posted the matter to 18.12.2018 for hearing of both parties. There is another suit pending between the parties in OS.51/2011. One of the petitioners herein is the defendant therein and the petitioners were actively perusing the same and pressing the matter from time to time before the court, which shows that the allegations mentioned in the affidavit that the local advocate did not intimate the progress of the suit is false and untenable. Hence, the petition is liable to be dismissed. 4. Heard both sides. 5. The matter was posted for orders to 03.09.2019 and thereafter this matter is being adjourned for time to time along with OS.51/2011 which was filed by the 1st respondent herein for specific performance of agreement of sale against the 3rd petitioner herein in respect of Ac.2.00 of land belonging to the adoptive father of the 3rd petitioner. Today OS.51/2011 is decreed. 4 6. Now the point for consideration is whether the order dt.18.12.2018 can be set aside and the suit can be restored as prayed for? POINT: 7. As seen from the record, the suit is filed by the petitioners herein for permanent injunction in respect of the total extent of Ac.11.30 cents including Ac.2.00 of land, which is the subject matter of OS.51/2011. The docket order shows that on 25.07.2013 a commissioner was appointed to record the evidence of P.Ws.1 to 4 and file his report. Thereafter the matter underwent several adjournments for the report of the commissioner and ultimately interim stay was granted by the Hon'ble High Court in CRP.No.967/2014 and ultimately as there was no extension of stay order produced in the matter, it was treated that the stay is deemed to have been vacated. Finally, on 14.12.2018 warrant was returned by the learned advocate commissioner stating that parties are not cooperating. Therefore, the matter is adjourned to 18.12.2018 for hearing both parties. On 18.12.2018 all the petitioners/plaintiffs are absent and there is no representation on their behalf and this court waited up to 4.50 P.M. On 18.12.2018, and passed the following order: “ Plaintiffs called absent. No representation on their behalf. waited up to 4.50 P.M. As seen from the record, on the dismissal of IA.888/2011 passed by this court dismissing the temporary injunction petition, plaintiffs preferred CMA.No.7/2012 on the file of the court of Hon'ble XI- Additional District Judge, Gudivada in CMA.No.7/2012 which was allowed on 28.04.2014. Questioning the said order, defendants in the suit preferred CRP.2355/20174 and the Hon'ble High Court granted interim suspension pending further orders on 25.07.2014. As seen from the record, as per docket order dt.9.10.2018 the stay was deemed to have been vacated in view of the judgment of Hon'ble 5 Supreme Court in ASIAN RESURFACING OF ROAD AGENCY Vs. CBI(AIR 2018 SC 2019). As seen from the record on 25.07.2013 itself a commissioner was appointed to record the evidence of P.Ws. 1 to 4 on 23.10.2018 commissioner sought time for execution of the warrant. Finally on 14.12.2018 commissioner returned one warrant stating that parties are not cooperating with execution of the warrant. Today the plaintiffs are called absent and there is no representation on behalf of the plaintiffs. The matter is of the year 2010 and in spite of the judgment of the Hon'ble Supreme Court, referred to above, plaintiffs are not getting ready in disposal of the present suit and on the other hand, they are not attending the court since long time. Therefore, this court finds no reason to grant further time to the plaintiffs and hence, the suit is liable to the dismissed for default. In the result, the suit is dismissed for default. No costs.” 8. Now the case of the petitioners in the present petition is that the commissioner has not given any notice to the petitioners and their counsel appearing at Gudivada did not inform about the stage of the suit and there are no willful latches on the part of the petitioners. This particular contention of the learned counsel for the petitioners cannot be accepted or countenanced. As rightly contended by the learned counsel for the respondents, petitioners have been regularly appearing in OS.51/2011 on each and every date of hearing and they have been pursuing the matter. Therefore, question of the counsel for the petitioners not informing the stage of the present suit does not arise and it clearly appears that such a plea was taken only to throw the blame on the learned counsel. Admittedly, the petitioners have not taken any action against their counsel for not informing the stage of the suit. There is no material on record to show that the 1st petitioner sent his son to ascertain the stage of the present suit as stated in the present petition.
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