IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION NO :1799 OF 2010 DATED:13.8.2010 Between: Srinivas Parikh .....PETITIONER AND 1 Ratna Bai & another. .....RESPONDENTs This Court made the following : THE HON'BLE SRI JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION NO :1799 OF 2010 ORDER: This revision petition is filed aggrieved by the order dated 2.12.2009 in R.C.A.No:10 of 2001 on the file of the Senior Civil Judge-cum-Rent Control Appellate Authority, Nizamabad. The petitioner in I.A.No:282 of 2006 is the petitioner in the revision petition. I.A.No:282 of 2006 is filed by the petitioner under order 9 rule 9 C.P.C read with section 151 C.P.C seeking for restoration in R.C.A.No:10 of 2001 which was dismissed for default on 13.3.2006. By order dated 2.12.2009, the learned Senior Civil Judge-cum-Rent Control Appellate Authority, dismissed the said I.A. Aggrieved by which, the present C.R.P is filed. The brief facts of the case are that the respondent is the landlord who filed R.C.25 of 1992 on the file of the learned Principal Junior Civil Judge-cum-Rent Controller, Nizamabad seeking for eviction of the respondent therein from the demised mulgi bearing No:7-1-61 equivalent to 7-1-70 situated at Ramgopal Veedhi, Nizamabad. After contest, the learned Principal Junior Civil Judge-cum-Rent Controller, Nizamabad by order dated 23.3.2001 ordered eviction of the respondent therein. Aggrieved by the same, the respondent-tenant filed R.C.A.No:10 of 2001 on the file of the Senior Civil Judge-cum-Rent Control Appellate Authority, Nizamabad. The said appeal was dismissed for default on 13.3.2006. Therefore, the appellant therein filed I.A.No:282 of 2006 under order 9 rule 9 C.P.C seeking to restored R.C.A.No:10 of 2001. In support of the said application, an affidavit was filed by the counsel for the appellant stating that R.C.A was posted to 13.6.2001 for orders, on which date he was out of station and therefore, he requested Sri Suresh Babu, Advocate to inform the same to the counsel for the respondent viz., Sri Anandarao and seek an adjournment. Accordingly, Sri Sureshbabu informed to Sri Anandarao, Advocate for the respondent. On Sunday i.e., on 19.3.2006 when Sri Anandarao met him in Hyderabad he informed that R.C.A was dismissed. Therefore, the absence of the counsel for the petitioner-appellant on the relevant date was not intentional but due to the circumstances explained. On behalf of the respondent in the appeal, a counter was filed stating that the reason stated in the affidavit filed in support of the petition seeking for restoration of the appeal, is untenable and there is also a wrong provision mentioned in the petition. Having regard to the submissions made in the affidavit and in the counter, the learned Senior Civil Judge-cum-Rent Control Appellate Authority dismissed the said application on the ground that the matter underwent several adjournments and on the relevant date, the explanation for his absence given in the affidavit filed in support of the petition is not satisfactory. Aggrieved by which, the present revision petition is filed. Heard the learned counsel and perused the material available on record. The learned counsel for the petitioner submitted that the petitioner in the revision petition is a tenant against whom the respondent filed R.C.C.25 of 1992 seeking for eviction and the same was allowed. Aggrieved by the same, the petitioner filed R.C.A 10 of 2001 and it was kept pending on the file of the learned Senior Civil Judge-cum-Rent Control Appellate Authority, Nizamabad and it is only on 13.3.2006, the case was posted for arguments and unfortunately, as the counsel on record for the petitioner-tenant was out of station, he could not present and therefore, the said R.C.A was dismissed for default. Therefore, I.A.282 of 2006 was filed along with an affidavit of the counsel for the petitioner-tenant and though the reasoning given in the affidavit filed in support of the petition was convincing, the learned Senior Civil Judge-cum-Rent Control Appellate Authority had not considered the same. It is further submitted that in any event, for the mistake on the part of the counsel for the petitioner-tenant, the party should not be victimized and therefore, the impugned order is liable to be set aside by remitting the matter back to the lower appellate Court for consideration and passing appropriate orders in R.C.A.10 of 2001. On the other hand, the learned counsel for the respondent- landlord submitted that in the hands of the petitioner-tenant, the respondent-landlord is undergoing very untold difficulties for the last 18 years and as the petitioner could not pay the rents for the demised mulgi, it was necessitated to file R.C.C.25 of 1992 and the same was decreed in the year 2001 and aggrieved by the same, the petitioner-tenant filed an appeal in R.C.A.10 of 2001, which was prolonged till 2006 and when the matter was posted for orders finally on 13.3.2006, the Senior Civil Judge-cum-Rent Control Appellate Authority has rightly dismissed the said appeal on the ground that there was no proper representation on behalf of the petitioner-tenant. Admittedly, the petitioner-appellant is a tenant who suffered the decree in R.C.C.25 of 1992, dated 23.3.2001. Aggrieved by the same, he filed R.C.A 10 of 2001 and the same was dismissed on 13.3.2006 for default on the ground that there is no representation by the learned counsel for the petitioner-tenant. In this regard, it is to be noted that the reasoning given by the counsel for the petitioner-tenant on record in his affidavit, shows that on the relevant date, he was out of station. Though the learned the Senior Civil Judge-cum-Rent Control Appellate Authority observed that the matter underwent several adjournments, but the fact remains that it was dismissed for default only on 13.3.2006. It was the specific statement made in the affidavit filed by the counsel for the petitioner-tenant on record that he requested Sri Sureshbabu, Advocate to informed the advocate for the respondent-landlord that he will be out of station and request for adjournment. These facts are not disputed by the counsel for the respondent-landlord before the lower appellate Court and therefore, the reasoning given by the learned counsel for the petitioner-tenant on record, appears to be a bonafide one. However, the lower appellate Court having not satisfied with the reasoning given by the counsel for the petitioner-tenant, dismissed the application in I.A.No:282 of 2006. In any event, but for the mistake on the part of the counsel, the party shall not suffer. Even apart from that, a lis between the parties shall be adjudicated on its own merits but not on mere technicalities so as to avoid multiplicity of the proceedings of this nature. In this view of the matter, I am of the view that it is a fit case wherein the order impugned can be set aside. However, considering the facts and circumstances of the case and the nature of the proceedings, I feel that it would suffice if the impugned order is set aside by imposing terms. Accordingly, this revision petition is allowed and the order impugned is set aside on condition of the petitioner paying Rs.1,000/- (Rupees one thousand only) towards costs to the learned counsel for the respondent herein within a period of two (2) Weeks from the date of receipt of a copy of this order. The Senior Civil Judge-cum-Rent Control Appellate Authority, Nizamabad is directed to restore the appeal and proceed with the matter and pass orders in accordance with law, as expeditiously as possible preferably within a period of two (2) months from the date of receipt of a copy of this order. ____________________ Justice G.Chandraiah Date:13.8.2010 gurc THE HON'BLE SRI JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION NO :1799 of 2010 13TH AUGUST, 2010