THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRP No.3115 of 2009 Date:4.12.2009 Between: Gummadavelli Bhaskar, Surapet, Nalgonda District. And The Municipality, Rep by Commissioner, Suryapet, Nalgonda District and another. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRP No.3115 of 2009 ORDER: 1. This revision is directed against the order dated 1.4.2009 passed in C.M.A No.6 of 2006 on the file of II Additional District Judge, Nalgonda at Suryapet, whereby and whereunder the learned Additional District Judge dismissed the Civil Miscellaneous Appeal. 2. The petitioner is the plaintiff in O.S.No.165 of 2004 on the file of the Junior Civil Judge, Suryapet. He filed the suit for injunction against the respondents/defendants. Defendant No.1 filed written statement and issues came to be framed. Since the petitioner/plaintiff failed to proceed with the suit by adducing evidence on 23.12.2005, the suit filed by him came to be dismissed for default. The plaintiff filed I.A.No.34 of 2006 under Order 9 Rule 9 CPC seeking restoration of the suit to set aside the default order passed on 23.12.2005 and to restore the suit to file. 3. In the affidavit filed in support of the petition, he took the plea that on 23.12.2005 at about 10.30 P.M., he appeared before the Court and got the case passed over. Subsequently, he developed stomachache and therefore, he left the premises. His case came to be called on the afternoon session and ultimately, ended in dismissal for non-prosecution. The 1st respondent filed counter opposing the application of the petitioner. The 1st respondent took the plea in the counter that the petitioner failed to place any medical certificate as proof of his ill health on 23.12.2005. It appears that R.2 adopted the counter of R1. The petitioner got himself examined as P.W.1 besides examining one M.A.Rasheed as P.W.2. The respondent did not choose to adduce any evidence. 4. The learned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, dismissed the application being I.A.No.34 of 2006 by order dated 12.4.2006. The petitioner/plaintiff filed CMA No.6 of 2006, on the file of II Additional District Judge, Nalgonda at Suryapet, assailing the order dated 12.4.2006 passed in I.A.No.34 of 2006. The learned District Judge, on reappreciation of the evidence brought on record, did not find any valid ground to interfere with the order passed by the lower Court and accordingly dismissed the appeal by order dated 1.4.2009. The said order is assailed in this revision. 5. Notice before admission came to be ordered on 24.7.2009. The 2nd respondent entered appearance through a counsel. The 1st respondent though received the notice, none appeared on his behalf. 6. Heard the learned counsel appearing for the petitioner/plaintiff and learned counsel appearing for the 2nd respondent/defendant. 7. Learned counsel appearing for the petitioner/plaintiff submits that the petitioner developed severe stomachache on 23.12.2005 and therefore, he left the Court premises. A further submission has been made that the petitioner examined himself as P.W.1 and examined one M.A.Rasheed as P.W.2 to speak of reason for leaving the Court premises on 23.12.2005. 8. Learned counsel appearing for the 2nd respondent/defendant supported the order impugned in the revision. 9. The petitioner is the plaintiff. He filed the suit for perpetual injunction against the defendants 1 and 2. The suit was posted to 23.5.2005 for evidence on behalf of the petitioner. It is the version of the petitioner/plaintiff that he attended the Court on 23.12.2009 and subsequently, he developed severe stomachache and therefore, he left the Court premises. To substantiate his contention, he got himself examined as P.W.1 and examined one M.A.Rasheed as P.W.2. The trial Court disbelieved the evidence of P.Ws.1 and 2 on the ground that there is no medical certificate placed on record. It is the version of the P.W.1 that he appeared before the Court on 23.12.2005 and subsequently, left the Court premises as he developed severe stomachache. P.W.2 corroborated with the testimony of P.W.1 in all material particulars. In the given facts and circumstances, not placing the medical certificate cannot be a ground to reject the testimony of P.Ws.1 & 2. Both the trial Court as well as the Appellate Court failed to consider the evidence of P.Ws.1 and 2 in right perspective and thereby erred in dismissing the application filed by the petitioner/plaintiff. Of course, there are some laches on the part of the petitioners in not informing his counsel of his leaving the court premises. In the given facts and circumstances, I am of the view that the application filed by the petitioner to set aside the default order can be considered subject to certain terms. 10. In the result, the Civil Revision Petition is allowed and setting aside the dismissal order passed in I.A.No.34 of 2006 in O.S.No.165 of 2004 as confirmed by the lower Appellate Court in CMA No.6 of 2006 and consequently, I.A.No.34 of 2006 stands allowed subject to:- 1. The petitioner paying costs of Rs.2,000/- within fifteen days and 1. The petitioner shall complete the evidence on his side in two sittings as fixed by the trial Court. ___________________________ Justice B.Seshasayana Reddy Date:4.12.2009 mrb