This appeal challenged the dismissal of an interlocutory application to set aside a decree dismiss. The court found no sufficient cause for the appellant's absence and non-prosecution, allowing the lower court's dismissal.
Civil Miscellaneous Appeal dismissed with no order as to costs and miscellaneous petitions closed.
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THE HON’BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE MRS JUSTICE ANIS
CIVIL MISCELLANEOUS APPEAL No.291 OF 2009
JUDGMENT: (per Hon’ble Sri Justice K.C.Bhanu)
This Civil Miscellaneous Appeal, under Order XLIII, Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the Order and decree, dated 30.09.2008, in Interlocutory Application No.2169 of 2008 in Original Suit No.6 of 2004 passed by the Principal District Judge, East Godavari, Rajahmundry.
2. The appellant herein, who is the plaintiff in the aforementioned Original Suit, filed the above Interlocutory Application under Order IX Rule 9 read with Section 151 CPC to set aside the dismissal order, dated 26.06.2008.
3. Heard both sides.
4. The Original Suit was filed for specific performance based upon family arrangement (Khararunama).
5. When the suit was coming up for trial, chief evidence affidavits of PWs.1 to 3 were filed, but the witnesses did not turn up for about 17 adjournments. On the application filed by the plaintiff, the trial Court appointed an Advocate Commissioner to record their cross-examination. But, PWs.1 to 3 could not make themselves available to the Advocate Commissioner to record their cross-examination. On the representation made by the Advocate Commissioner, trial Court passed a conditional order,
but the same was also not complied with.
6. If a sufficient cause is shown for absence on 26.06.2008, the petition for setting aside the dismissal order can be allowed. The word ‘sufficient cause’ has not been defined under Order IX Rule 9 CPC. But, it must be shown that the cause is beyond the control of the party invoking the aid of the said provision. When a party is prevented by sufficient reason from approaching the Court, it can be said to be a good ground to set aside the dismissal order.
7. As seen from the affidavit filed in support of the petition before the trial Court, no sufficient reason or cause had been shown for their absence on 26.06.2008. Further-more on earlier occasions also for about 17 adjournments, the appellant has not prosecuted the case diligently and in spite of passing a conditional order that order has also not been complied with. Therefore, it cannot be said to be a case where the appellant was diligently prosecuting the case and the absence of the petitioner can be said to be wilful and wanton. The petition filed under Order IX Rule 9 CPC was rightly dismissed by the trial Court and there are no grounds to interfere with the impugned order.
8. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
_______________________ JUSTICE K.C. BHANU
JUSTICE ANIS
Date:18.09.2014 INL
3 issues framed by the court
Whether the appellant showed sufficient cause for absence to set aside the dismissal order under Order IX Rule 9 CPC.
Whether the appellant diligently prosecuted the case despite repeated non-compliance.
Whether the Civil Miscellaneous Appeal filed under Order XLIII, Rule 1 CPC deserves interference.
2 provisions across 1 enactments
Appellant (Plaintiff)
Respondent
K.C. BHANU
ANIS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
