Allowed

Maddala Jagdish Kumar, v. Sanagapalli Venkata Subba Rao

Andhra Pradesh HC2 Aug 2023CMA/228/2023

Case brief

AI extract

What is this about?

The High Court allowed the Civil Miscellaneous Appeal filed to restore an appeal previously dismissed for default. The court set aside the impugned order dismissing the application and directed the first appellate court to dispose of the appeal on merits within two months, directing parties to cooperate.

What did the court decide?

The C.M.A. allowed; the impugned order dated 16.06.2023 set aside; the first appellate court directed to dispose of the appeal on merits within two months. No order as to costs.

Maddala Jagdish Kumar, Vs Sanagapalli… — Contract and Commercial Disputes | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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WEDNESDAY ,THE SECOND DAY OF AUGUST TWO THOUSAND ANO TWENTY THREE

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PRESENT

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HONOURABLE DR JUSTICE K MANMADHA RAO

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CIVIL MISCELLANEOUS APPEAL NO: 228 OF 2023

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Between:

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Maddala Jagadish Kumar. S/o. Maddala Sai Babu, Hindu, Aged about years Occ. Business, Proprietor of Maddala Sai Baba & Co, R/o. D.No.3-5 Odd.’ SKPW, High School, NRP Road, Vijayawada-3.

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— AppellantZPetitioner/Appellant

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Sanagapalli Venkata Subba Rao, S/ o. Rama Murthy, Aged about 45 years, Occ. Business. R/ o. F-3, 2nd Floor, Vayuputra Residency Apartments, D.No:31-11-4A & 5, Hindu College Street. Machavaram. Vijayawada.

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...Respondent/ Respondent/ Respondent

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Appeal under Order 43. Rtile 1(T) of C.P.C, aggrieved by the Order and Decree dated 16/06/2023. passed by the Court of VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge, Vijayawada, in I.A. No 660 of 2022 in A.S. No.99 of 2015

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This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and Decree of the Lower Court and material papers in the Suit and upon hearing arguments of Sri P S P Suresh Kumar, Advocate for the Appellant, and of Sri Kothapalli Sri Harsha Advocate for Respondent.

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This Court doth Order and decree as follows:

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That the C.M.A be and is hereby allowed,

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That the first appellate court be and is hereby directed to dispose ofthe

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Appeal on merits within two (02) months from the date of receipt of a copy of this order.

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3. That both the parties are directed to co-operate with the first Appellate for Court for disposal at the earliest.

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4. That the impugned -order dated 16.06.2023 in I.A.No.660 of 2022 in

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A.S.No.99 of 2015 of the VII Additional District Judge-eum- IV

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Additional Metropolitan Sessions Judge at Vijayawada be and is hereby set aside.

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That there shall be no order as to costs.

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Sd/- S.V.S.R.MURTHY JOINT REGI^RAR //TRUE COPY// ^SEC^lSN OFFICER

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To.

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The VII Additional District Judge-cum-IV Additional Metropolitan Sessions 2 — Judge, ■ - — Vijayawada, - Krishna District The VII Additional Senior Civil Judge, Vijayawada, Krishna District

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Two CD copies,

vna

HIGH COURT

DATED:02/08/2023

DECREE

CMA.No.228 of 2023

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ALLOWING THE CMA WITHOUT COSTS

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IN THE HIGH COURT OF ANDHRA PRADESHAT AMARAVATI

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WEDNESDAY ,THE SECOND DAY OF AUGUST TWO THOUSAND AND TWENTY THREE

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PRESENT

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HONOURABLE DR JUSTICE K MANMADHA RAO

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CIVIL MISCELLANEOUS APPEAL NO: 228 OF 2023

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Appeal under Order 43, Rule 1(T) of C.P.C, against the Order and Decree dated 16/06/2023, passed by the Court of VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge, Vijayawada, in I.A. No.660 of 2022 in A.S. No.99 of 2015

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Between:

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Maddala Jagdish Kumar, S/o. Maddala Sai Babu, Aged about years Occ •** ° years,SKPW;Occ,

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...Appellant/Petitioner/Appellant

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AND

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Sanagapalli Venkata Subba Rao,, S/ o. Rama Murthy, Aged about 45 years Occ & 5® Hindi. f *??'’’ yayuputra Residency Apartments, D.No.31-11-4A & 5, Hindu College Street, Machavaram, Vijayawada.

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...Respondent/ Respondent/ Respondent

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lA NO: 1 OF 2023

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• th Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to 2®yP'’oc®®dings in pursuance to the Judgment and Decree passed by Lol S®'^'®'' Civil Judge, Vijayawada, in O.S. No.1162 of 2012, 03160 uy/p3/zoi5. Counsel for the Appellant: Sri P S P Suresh Kumar

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Counsel for the Respondents: Sri Kothapalli Sai Sri Harsha

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The Court made the following:

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THE HON’BLE DR. JUSTICE K. MANMADHA RAO

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C.M.A.Wo.228 OF 2023

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JUDGMENT:

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The appellant/ petitioner before learned first appellate court filed the. present Civil Miscellaneous Appeal before this Court. Aggrieved by the order dated 16.06.2023 in I.A.No.66d of 2022 in A.S.No.99 of 2015 on the file of Court of the VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge, Vijayawada, which is filed under Order 41, Rule 19 of C.P.C to restore the suit dismissed for default on 01.09.2022.

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Initially respondent herein is the plaintiff before the trial court has filed a suit in O.S.No.ll62 of 2012 on the file Of the Court of VII Additional Senior Civil Judge, Vijayawada seeking for eviction of the defendant i.e appellant herein from the plaint schedule premises, directing him to vacate and deliver vacant possession to the plaintiff intact damages by way of menses profit for use and occupation from 06.08.2012 till the defendant delivers vacant possession and arrears of rent. The said suit is decreed on merits as prayed for On 09.03.2015. Assailing the same, the defendant therein i.e appellant herein has preferred an Appeal in A.S.No. 99 of 2015. In the said Appeal was dismissed for default on 01.09.2022 due to non representation of the appellant herein.

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Therefore, the appellant filed an application to restore the Appeal and contended that pn 01.09.2022 the Appeal was posted for arguments and on that day, the appellant attended the first Appellate Court and unable to receive the voice of the Court Staff at the time of call work and also no representation on his behalf the Court dismissed the appeal for default.

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Per contra, the plaintiff/ respondent filed counter affidavit denying ^11 material averments and contended that the appellant never attended the court on the date of adjournment with an intention to dodging the proceedings. Therefore the application is liable to be dismissed.

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Based on the above pleadings, the learned First Appellate eventually framed the following issue for consideration:

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Whether there are grounds to allow the application.

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On enquiry, the first appellate court has given a finding that the as per docket proceedings dated 01.09.2022 which shows that the appellant was called absent and there was no representation on his behalf and also his counsel did not represent . the matter. ^Accordingly the application is dismissed.

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Heard Sri P.S.P.Suresh Kumar, learned counsel for the appellant and Mr. K. Sai Sri Harsha, learned counsel for respondent.

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During hearing learned counsel for the appellant vehemently reiterated the contentions as urged in the grounds of appeal. Whereas, learned counsel for the respondent submitted that the respondent has no objection to allow the appeal, but time frame has to be fixed to dispose of the Appeal on . merits to the learned first appellate court. Learned counsel for the appellant also conceded the same.

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. 9. In view of the submissions of the learned counsel, it is needless to look into merits of the case. Accordingly, the C.M.A is allowed, while directing the first appellate court to dispose of the Appeal on merits within two (02) months from the date of receipt of a copy of this order. Both the parties are directed to co-operate with the first Appellate for Court for disposal at earliest. Further, the impugned order dated 16.06.2023 in I.A.No.660 of 2022 in A.S.No.99 of 2015 of the learned First Appellate Court is hereby set aside. There shall be no order as to costs.

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, As a sequel, miscellaneous applications pending, if any, shall also stand closed.

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To, 1.

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//TRUE COPY//

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Sd/- S.V.S.R.MURTHY JOINT REGI0RAR ^tVSect^onofficer

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3 Sit CC to ft?Vijayawada. Krishna District

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4.- One CcS Sri- W^eTh Ad™^^^

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■ AmarayaM0°^“'' Andhra Pradesh at 6. Two CD Copies Stu vna

HIGH COURT

DATED:02/08/2023

JUDGMENT

CMA.No.228 of 2023

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ALLOWING THE CMA WITHOUT COSTS

Maddala Jagdish Kumar, v. Sanagapalli Venkata Subba Rao

Case brief

What is this about?

What did the court decide?

Maddala Jagdish Kumar, v. Sanagapalli Venkata Subba Rao

Case brief

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