IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL MISCELLANEOUS APPEAL No.2064 of 2000 Between: M/s.Sri Venkatachala Finance, rep. by its Managing Partner, Smt.M. Atchamamba by her power of Attorney Sri M.G.K. Gokhale, R/o.Tadepalligudem, West Godavari District ... APPELLANT AND Marisetti Markandeyulu and five others ... RESPONDENTS JUDGMENT: This Civil Miscellaneous Appeal is directed against the order, dated 27-10-1999 passed in I.A.No.1046 of 1998 in O.S.No.122 of 1992 on the file of the Senior Civil Judge, Tadepalligudem, whereby and whereunder the learned Senior Civil Judge, Thadepalligudem dismissed the application filed by the plaintiff under Order 9 Rule 9 of C.P.C. seeking restoration of the suit which ended in dismissal for default. 2. Despite service of notice, respondent No.1 did not choose to enter into appearance either in person or through a counsel. Respondent No.3 entered appearance through a counsel. Notice to respondent Nos.2, 4, 5 and 6 came to be effected by of substitute service. Notice to respondent No.2 has been published in English Daily viz., Young Leader, Pilani (D), Rajesthan and whereas notices to respondent Nos.4 to 6 has been published in Praja Shakthi Newspaper in Tadepalligudam, West Godavari District. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent. 4. The learned counsel appearing for the appellant/ plaintiff submits that the plaintiff could not file the account books on the date fixed for further chief examination of PW-1 as the same were held up in Senior Civil Judge’s Court, Amalapuram in connection with O.S.No.111 of 1992 and thereby, the appellant/plaintiff could not be present on the date on which the suit stood posted for further chief-examination of PW-1. 5. The learned counsel appearing for the third respondent submits that the appellant/plaintiff could have obtained the certified copies of the documents, which have been exhibited in O.S.No.111 of 1992 and the appellant/plaintiff having failed to obtain the certified copies cannot be permitted to make it a ground for setting aside the dismissal order. 6. The appellant/plaintiff filed the suit for recovery of Rs.2,04,336/- basing on equitable mortgage. He examined PW-1 in chief in part. The case stood posted to 09-06-2008 on which date he failed to appear before the court and consequently his suit came to be dismissed for default. He filed I.A.No.1046 of 1998 under Order 9 Rule 9 of CPC seeking restoration of suit. 7. In the affidavit filed in support of the petition it is stated as hereunder: “The Honourable Court examined PW-1 chief in part on 23-02-1998. The accounts books has to be filed in the Honourable Court. But the accounts books were filed and marked as Exhibits in O.S.111/92 of Amalapuram Senior Civil Judge’s Court. Those books has to be taken back and those books has to be filed in this Honourable Court. That is why I could not file those books in this Honourable Court in time. 8. The first respondent filed counter resisting application. It is stated in the counter that the plaintiff despite granting many adjournments did not proceed further and thereby the suit filed by the plaintiff ended in dismissal and therefore, the order impugned in the appeal does not warrant interference. 9. The fact remains that some of the documents sought to be produced in the suit were marked as exhibits in O.S.No.111 of 1992 on the file of Senior Civil Judge’s Court, Amalapuram. The suit is based on equitable mortgage. The trial Judge without considering the affidavit filed in support of the petition proceeded to observe that there are no grounds in the petition. The order passed by the trial Judge is a cryptic one; it neither referred the affidavit filed in support of the petition nor counter of the first respondent filed resisting the application. 10. The suit is of the order 1992 and substantial amount is involved in the suit. Considering the facts and circumstances, I am of the view that the suit filed by the plaintiff can be restored to file subject to certain terms and conditions. 11. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the order dated 27-10-1999 passed in I.A.No.1046 of 1998 in O.S.No.122 of 1992 on the file of the Senior Civil Judge, Tadepalligudem subject to certain conditions. Consequently, I.A.No.1046 of 1998 in O.S.No.122 of 1992 filed under Order 9 Rule 9 of CPC stands allowed subject to the following conditions: 1. The plaintiff shall pay costs of Rs.2,000/- (Rupees two thousand only) to the defendant within a period of fifteen (15) days. 2. The plaintiff shall complete his evidence in two sittings. Failing compliance of any one of the two conditions the order impugned in the appeal shall hold good. ___________________________ B. SESHASAYANA REDDY, J February 22, 2010. Note: Furnish CC in one week. B/o.PN THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL MISCELLANEOUS APPEAL No.2064 of 2000 February 22, 2010 Note: Furnish CC in one week. B/o.PN