THE HON'BLE MR JUSTICE N.V. RAMANA and THE HON’BLE MR JUSTICE NOUSHAD ALI Civil Miscellaneous Appeal No.1195 of 2009 JUDGMENT:(per Hon’ble Mr Justice N.V.Ramana) This civil miscellaneous appeal is preferred against the docket order, dated 10.08.2009, passed by the learned VII Additional District Judge, Visakhapatnam in I.A.No.982 of 2009 in O.S.No.6 of 2001. The appellants are the plaintiffs. They filed O.S.No.6 of 2001 seeking declaration of title in respect of the suit property and consequential injunction restraining the defendants and their men from interfering with their peaceful possession and enjoyment of the suit property. While so, they filed the present application, I.A.No.982 of 2009, under Order IX Rule 9 r/w Section 151 CPC to restore I.A.No.928 of 2009, which was filed to reopen the evidence on their side. The trial Court, through the impugned docket order, dated 10.08.2009, dismissed the said application, which reads as under: “Clear order was noted in I.A.No.928 of 2009. Already sufficient time was granted. Hence, this petition is dismissed.” Aggrieved by the said order, the present civil miscellaneous appeal is filed by the appellants-plaintiffs. We have heard the learned counsel for the appellant as well as the learned counsel appearing for respondents 1 and 2, the contesting respondents, at length. Even though respondents 3 and 4 were served with notice and their names were printed in the cause list, there was no representation on their behalf. However, at the hearing, it is represented by the learned counsel for the appellant that respondents 3 and 4 are not necessary for the present appeal. As can be seen from the material on record, the respondents herein filed O.S.No.203 of 2005 seeking injunction in respect of the same property, wherein an Advocate Commissioner was appointed by the trial Court suo motu to record evidence in both the suits i.e., (i) O.S.No.6 of 2001 filed by the appellants herein and (ii) O.S.No.203 of 2005 filed by the respondents herein. The Advocate Commissioner so appointed, after issuing notices, started recording evidence in O.S.No.203 of 2005 and informed that after completion of the evidence in that suit, he will record the evidence in O.S.No.6 of 2001. But, it appears, though the Advocate Commissioner completed the evidence in O.S.No.203 of 2005, he did not record evidence in O.S.No.6 of 2001 and eventually, due to the non-cooperation of some of the Advocates, he could not execute the warrant and therefore, the trial Court recalled the warrant. It appears, thereafter the matter was listed for evidence on the side of the appellants and due to the absence of the appellants on 07.07.2009, the evidence was closed and the matter was posted for arguments on 10.07.2009 and subsequently on 15.07.2009. In the meantime, the appellants filed I.A.No.928 of 2009 for re-opening the matter to enable them to adduce evidence on their side. The trial Court, through its docket order, dated 04.08.2009, dismissed the said application, which reads as under: “D1 and D2 requested time for counter. No representation by petitioner counsel. Perused the petition averments. Already sufficient time was granted for plaintiff side evidence. It is an old identified matter. Hence this petition is dismissed.” The trial Court dismissed I.A.No.982 of 2009 observing that a clear order was passed in I.A.No.928 of 2009. But, the order passed in I.A.No.928 of 2009, which is extracted hereinabove, is also a non- speaking order and the trial Court has not given any valid reasons, such as, how many times the appellants had taken time, how many times there was no representation on their behalf etc. In that view of the matter, we are of the considered opinion that the impugned order is not sustainable. Accordingly, the civil miscellaneous appeal is allowed by setting aside the order under appeal. The trial Court shall consider the application afresh and pass appropriate orders thereon, in accordance with law, expeditiously. No costs. _________________ N.V. Ramana, J _________________ Noushad Ali, J Date:22.02.2010 VGB