HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No.581 of 2007 Date:18.07.2014 Between:
Mukkamalla Uma Maheswari, W/o Govinda Reddy And:
Kasa Venkata Reddy, S/o Late Venkata Reddy and 10 others.
……Appellant ..…Respondents Counsel for the appellant: Sri S.V.Ramana For Sri O.Manoher Reddy Counsel for respondent Nos.1, 4 & 5:Sri S.Lakshminarayana Reddy Counsel for respondent Nos.6 & 7: Sri J.Seshagiri Rao Counsel for respondent Nos.12 to 14: Sri G.Venugopal Reddy Counsel for respondent Nos.3 & 11: None appeared The Court made the following:
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No.581 of 2007 JUDGMENT:
This Civil Miscellaneous Appeal is filed against the order, dated 10.10.2006, in I.A.No.237 of 2006 in O.S.No.22 of 2001 on the file of the learned II Additional District Judge, Kadapa at Proddatur.
The appellant herein filed the above-mentioned suit for partition of the suit schedule properties. During the pendency of the suit, respondent Nos.10 and 11 were transposed as plaintiff Nos.1 and 2. However, as the said two persons did not pay the Court fees as ordered by the lower Court, their names were subsequently deleted. After the written statements were filed by the respondents-defendants, the suit was dismissed for default on 23.12.2005 due to the absence of the appellant. The appellant has, therefore, filed I.A.No.237 of 2006 under Order IX Rule-9 read with Section 151 of the Code of Civil Procedure for setting aside the dismissal order. This application was dismissed by the lower Court by the above-mentioned order which is assailed in this appeal.
At the hearing, it is represented that respondent Nos.10 and 11, who are not served, are only formal respondents in this appeal.
A perusal of the order of the lower Court would show that the application filed by the appellant was dismissed on the ground that she has not filed Medical Certificate in support of her claim of illness and that she has also not paid the costs imposed on earlier occasion.
In my opinion, the lower Court ought to have been somewhat liberal in setting aside the dismissal order at least once. Regrettably, refusal to set aside the dismissal order has resulted in pendency of the case before this Court for more than seven years. Had one opportunity been afforded to the appellant by the lower Court, the suit itself would have been disposed of long time back.
As this Court is of the view that the reasons on which the lower Court has dismissed I.A.No.237 of 2006 are not proper, the order under appeal is set aside. I.A.No.237 of 2006 is allowed and the suit is restored to file. The appeal is, accordingly, allowed. As the suit is of the year 2001 and respondent Nos.1 and 3 are very old, the lower Court is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order.
18th July, 2014 DRmn
JUSTICE C.V.NAGARJUNA
REDDY