THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL NO.2924 OF 2002 20th August 2009 Between: 1. B.Saroopa Rani, W/o.Sri Balwant Rao, 1 years, Occ.Household, R/o.H.No.16-11-310/6/11, Saleemnagar Colony, Malakpet, Hyderabad. And one other. …APPELLANTS AND 1. Afzaluddin Hassan, S/o.late Ahmed Hasan, 75 years, Retd.Deputy Superintendent of Police, R/o.H.No.3-5-11-2 and 3-5-11-2/1, Narayanguda, Hyderabad. And five others. …RESPONDENTS THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL NO.2924 OF 2002 JUDGMENT: The appellants filed O.S.No.1906 of 1988 in the Court of the V Senior Civil Judge, City Civil Court, Hyderabad, against the respondents for the relief of specific performance under an agreement of sale dated 09.03.1987. It was pleaded that the respondents offered to sell the suit schedule property for a consideration of Rs.5,00,000/-; an agreement of sale was executed on 09.03.1987, and a sum of Rs.2,00,000/- was paid as advance. It was pleaded that though the appellants were ready and willing to perform their part of contract, the respondents refused to execute the sale deed. The respondents filed written statement admitting the factum of execution of agreement of sale and receipt of Rs.2,00,000/-. However, justification was pleaded for not acceding to the request for execution of the sale deed. The trial of the suit was commenced with the evidence of the appellants herein. On the ground that they did not evince interest, the trial Court dismissed the suit for default on 11.12.1995. The appellants filed I.A.No.13 of 1996 under Order IX Rule 9 of the Code of Civil Procedure, 1908 {CPC}, with a prayer to set aside the order dated 11.12.1995 and restore the suit. The respondents opposed the application stating that the petitioners never evinced interest in pursuing the matter. The trial Court dismissed the I.A. on 08.08.2002. Hence, this Civil Miscellaneous Appeal under Order XLIII Rule 1 CPC. Sri Vedula Venkata Ramana, learned counsel appearing for the appellants, submits that the failure on the part of the appellants to commence evidence was on account of the reasons beyond their control. He submits that even if the appellants were absent, the trial Court ought to have proceeded with the suit, as provided under Order XVII CPC by taking into account, the material on record, instead of dismissing the suit for default. He submits that the inconvenience caused to the respondents can be compensated by awarding costs. Ms.Sneha, learned counsel appearing for the respondents, on the other hand, submits that the trial Court has taken the successive defaults committed by the appellants into account, while dismissing the I.A. She contends that ever since the date was fixed for commencing of trial, the appellants went on protracting the matter on one pretext or the other and virtually, the patience of the trial Court was put to test. She contends that the trial Court has stated cogent reasons and the order under appeal does not warrant interference. The suit was filed way back in the year 1988 and the pleadings were completed shortly. The trial was to commence on 21.08.1990. On a request made by the appellants, the trial Court appointed an Advocate Commissioner to record the evidence of the second appellant. The Commissioner, however, reported that the second appellant did not cooperate and returned the warrant on 10.11.1995. Thereafter, the trial Court dismissed the suit for default. It was pleaded by the appellants that the recording of evidence could not take place on account of the ill-health of the second appellant and both of them, being ladies, were not in a position to properly regulate their matters in pursuing the remedies. The trial Court has taken into account, the nature of default committed by the appellants and dismissed the I.A. A serious doubt exists as to whether the situation that was obtaining before the trial Court on 11.12.1995 attracted Rule 2 or Rule 3 of Order XVII CPC. If Rule 3 of Order XVII CPC is attracted, it was open to the trial Court to proceed with the suit, instead of dismissing it for default. If, on the other hand, Rule 2 of Order XVII CPC is attracted, it was open to the trial Court to dismiss the suit for default. The explanation to that Rule is not attracted since substantial part of the evidence was not recorded by that time. The record discloses that on 11.12.1995, the counsel for the appellants was very much present. The Andhra Pradesh Amendment to Rule 2 of Order XVII CPC is to the effect that mere presence of an advocate, without proper instructions, cannot be treated as appearance. In this regard, a reference may be made to the judgment of the Full Bench of this Court in M.Agaiah v. Mohd.Abdul Kereem (FB)[1]. In that case, it was held that the order of dismissal passed on reporting of no instructions cannot be sustained in law. The purport of Rules 2 and 3 of Order XVII CPC was discussed by the Honourable Supreme Court in B.Janakiramaiah Chetty v. A.K.Parthasarthi[2]. When there is a serious doubt as to the application of Rules 2 and 3 of Order XVII CPC to the facts of the instant case, this Court is of the view that the appellants deserve to be given an opportunity, however, by imposing heavy costs compensating the inconvenience that has caused to the respondents. The admission of the execution of the agreement of sale and receipt of advance in the written statement is another fact that needs to be taken into account. For the foregoing reasons, the Civil Miscellaneous Appeal is allowed and the order under appeal is set aside. I.A.No.13 of 1996 is allowed, subject to payment of costs of Rs.10,000/- {Rupees ten thousand only} to Ms.Sneha, the learned counsel for the respondents and a sum of Rs.30,000/- {Rupees thirty thousand only} to the respondents, within a period of four {4} weeks from today. In case, the appellants comply with the condition, the order dated 11.12.1995 stands set aside. Since the pleadings are ready, the trial Court shall take up the matter for trial with least possible intervals between each date of hearing and dispose of the suit itself by the end of December 2009. _____________________ (L.NARASIMHA REDDY, J) 20th August 2009 RRB [1] AIR 1961 AP 201 (V 48 C 52) (FB) [2] AIR 2003 SC 3527