IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.14 OF 2009 Between: Parra Mariyamma ...APPELLANT AND Parra Mariyamma @ Rojama. ...RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.14 OF 2009 JUDGMENT: This Civil Miscellaneous Appeal, under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) is directed order and decree, dated 22.10.2008 in I.A.No.1135 of 2008 in S.O.P.No.224 of 2003 on the file of the IV Additional District Judge, Guntur, whereunder and whereby, the application, filed under Order IX Rule 13 CPC to set aside the ex parte decree, dated 22.07.2008 passed in S.O.P.No.224 of 2003, was dismissed on the ground that in spite of giving several opportunities the appellant herein / petitioner has not availed the same. 2. The respondent herein filed S.O.P.No.224 of 2003 on the file of the IV Additional District Judge, Guntur, for grant of succession certificate. In spite of giving several opportunities, the appellant has not turned up for cross-examination and therefore, the Court below passed ex parte orders in S.O.P.No.224 of 2003. Aggrieved by the same, the appellant herein filed the present application to set aside the ex parte decree, dated 22.07.2008. Vide impugned order, the Court below dismissed the said application. Hence, the present Civil Miscellaneous Petition. 3. Learned counsel for the appellant herein /petitioner contended that the appellant was very much present on 21.02.2008; that the Court Attender wrongly called the name of the appellant as Chatragadda Mariyamma; that as the appellant confused and did not respond, the court below closed her cross-examination; that if one more opportunity is given to her, she can establish her right as to entitlement of death- cum-terminal benefits of deceased, and hence, he prays to set aside the ex parte decree. 4. On the other hand, learned counsel for the respondent contended that even assuming that the appellant’s name was wrongly called, she engaged an advocate on her behalf; that in spite of giving opportunity, the same has not been availed by the appellant and therefore, the trial Court dismissed the same and that order needs no interference by this Court. 5. The S.O.P.No.224 of 2003 was filed by the respondent herein claiming death-cum-terminal benefits of her deceased husband, who worked as an employee in Railways. The appellant herein is said to be the first wife of the deceased and, she is claiming right over the death-cum-terminal benefits of her deceased husband. The appellant engaged an advocate before trial Court, after receipt of summons, filed counter. The evidence on the side of the respondent (petitioner in the lower Court) is completed. The chief affidavit of the appellant was filed, but, she did not turn up for cross-examination, and so, her evidence was eschewed from consideration. The contention of the learned counsel for respondent herein is that appellant herein is not entitled for death-cum-terminal benefits as she was a divorced wife. Whether, the appellant is a divorced wife or not and whether she is entitled for the terminal benefits or not have to be decided in the Original Succession Original Petition. 6. No doubt, several opportunities were given to the appellant, but, the same were not availed by her. On the day when the evidence of the appellant was eschewed from consideration, the reason given by her is that her name was not called so as to present in the Court for the purpose of cross-examination by the other side counsel. The case of the appellant is that her counsel was absent and her correct name was not called. She being an illiterate there is possibility of not going to the Court hall for the purpose of tendering herself for cross-examination, as her correct name was not called. That appears to be a proper explanation. So, the non-availability of the appellant in the Court hall is not shown to be wanton or willful on the day when the matter was coming up for cross-examination. Therefore, one more opportunity can be given to the appellant so that her case can be decided on merits. Hence, the impugned order is liable to the set aside. 7. Accordingly, the Civil Miscellaneous Appeal is allowed subject to condition as imposed hereinafter, setting aside the order and decree, dated 22.10.2008 in I.A.No.1135 of 2008 in S.O.P.No.224 of 2003 on the file of the IV Additional District Judge, Guntur, and the trial Court is directed to fix a date for appearance of the appellant for the purpose of cross-examination and on that day the appellant shall present in the Court. For any reason, if the appellant fails to attend the Court for the purpose of cross-examination on the date so fixed by the trial Court, the order under challenge shall be given effect to. There shall be no order as to costs. _______________ K.C. BHANU, J MARCH 14, 2011 YVL