The High Court disposed of a Civil Revision Petition directing payment of costs and allowed the underlying application to restore an original suit after its dismissal for non-payment of process, noting the petitioner's illness but attributing laches.
Costs of Rs.1,000/- directed; I.A. No.18 of 2011 allowed; Original Suit restored.
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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR
CIVIL REVISION PETITION No.3484 of 2011
Dated:- 2 9 th August, 2011
Between:-
Bodumuru Krishna Rao
…Petitioner AND
Dhavili Venkata Ranga Rao
…Respondent
THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.3484 of 2011
ORDER:-
This revision is directed against the order dated 27.04.2011 passed in I.A.No.18 of 2011 in O.S.No.35 of 2008 by the Judicial Magistrate of First Class – cum – Junior Civil Judge, Amadalavalasa, Srikakulam District.
2. The petitioner herein, who is the plaintiff before the Court below, filed the Original Suit in O.S.No.35 of 2008 and the said suit was dismissed by the Court below by its order dated 25.10.2010 for non-payment of process to issue summons to the respondent/defendant. Subsequently, the petitioner filed the above referred I.A. seeking to set aside the order of dismissal dated 25.10.2010 and the Court below, by order dated 27.04.2011, dismissed the said I.A., which is being impugned by the petitioner in this revision.
3. Heard Sri A.Rama Rao, learned counsel for the petitioner.
4. At the stage of payment of process, the suit was dismissed on the ground that both the counsel for the petitioner and the petitioner himself were absent. It appears that the counsel for the petitioner could not appear before
the Court below in view of the call given by the Bar Council of A.P. to abstain the work. Basing on the judgment of the Apex Court in Ex.Capt. Harish Uppal Vs. Union of India[1] that the lawyers have no right to go on strike or to give a call for boycott and in view of the circular instructions of this Court, the Court below dismissed the I.A.
5. In the affidavit filed in support of the I.A. before the Court below, the petitioner contended that on the day of hearing of the suit, his counsel could not represent the matter and that he was also unable to attend the Court as he was suffering from loose motions and that his absence was neither wilful nor intentional.
6. As far as the observation of the Court below in the impugned I.A. that the lawyers have no right to go on strike or give a call for a boycott is concerned, there cannot be any second opinion about the same. But however, the fact remains that the petitioner had also stated in his affidavit that he was suffering from ill-health and he was not in a position to attend the Court. When such applications are to be considered, the Courts should consider whether the petitioner has assigned valid reasons for his absence or not. Since the petitioner contended that he was suffering from loose motions and was unable to attend the Court, the Court below ought to have taken this circumstance into consideration. Normally, it is always better if the matters are disposed of on merits. Moreover, it has to be seen that the petitioner filed an application to restore the suit only on 24.11.2010 and not immediately after the dismissal of the
suit. Therefore, it appears that there are laches on the part of the petitioner.
7. Having regard to the over all facts and circumstances of the case, the Civil Revision Petition is disposed of at the stage of admission itself directing the petitioner to pay an amount of Rs.1,000/- (Rupees one thousand only) as costs to the Mandal Legal Services Authority, Amadalavalasa, Srikakulam District and on payment of the said costs within a period of three (03) weeks from today, I.A.No.18 of 2011 filed before the Court below stands allowed and the Original Suit stands restored back to file. There shall be no order as to costs.
_________________________ Justice B.Chandra Kumar
29th August, 2011 Bvv
Note:- Issue C.C. by 05.09.2011. (B/o) Bvv
[1] AIR 2003 Supreme Court 739
3 issues framed by the court
Whether the Civil Revision Petition should be disposed of at the stage of admission directing the petitioner to pay costs.
Whether the I.A. to set aside the dismissal order for non-payment of process should be allowed and the Original Suit restored.
Whether the petitioner's absence due to illness warrants granting the restoration of the suit despite laches.
Colour shows how this judgement treated each authority
Ex.Capt. Harish Uppal Vs. Union of IndiaFollowed¶15
AIR 2003 Supreme Court 739 · Who else cites this
1 provisions across 1 enactments
Bodumuru Krishna Rao
Dhavili Venkata Ranga Rao
B.Chandra Kumar
As recorded by the court registry
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