HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION NO. 5158 OF 2008 Friday, the Eleventh day of March, Two Thousand and Eleven Between D.Narayanareddy Petitioner AND 1. B.Appalanarasamma (died) per L.Rs. 2. B.Durga Reddy and others Respondents ORDER: Heard both the counsel. This Civil Revision Petition is filed against the order dated 10.4.2008 made in IA No. 1400 of 2005 in I.A. No. 1400 of 2004 in O.S. No. 944 of 1996 in dismissing the said application filed for restoration of IA No. 1400 of 2004, filed under order 9 rule 9 CPC. The petitioner herein is the plaintiff who filed the suit OS No.944 of 1996 on the file of the Principal Senior Civil Judge, Visakhapatnam, for specific performance of the agreement of sale dated 7.3.1992. In the said suit, the petitioner was examined as PW1, in chief, and the court below appointed an Advocate Commissioner to cross- examine the petitioner and posted the matter on 17.11.2003 for report of the Commissioner. It is stated that as the petitioner was out of station, he could not pay process fee for the appointment of Advocate Commissioner and for payment of process, the matter was entrusted to his colleague to pay the process along with a petition to condone the delay. But the said colleague did not represent the matter when called, the court below dismissed the suit for default. Accordingly, IA No. 1400 of 2004 was filed under Order 9 Rule 9 CPC to set aside the dismiss for default order dated 17.11.2003 and to restore the above said suit. The said I.A. was allowed on payment of costs of Rs.1,000/- to the Legal Service Authority and posted the matter to 22.8.2005 for compliance. It is stated that the said amount was paid on 22.8.2005 itself and obtained a receipt from the Legal Services Authority, but even before the receipt could be filed before the court below, the application was dismissed after lunch. Therefore, the petitioner filed another application in IA No. 1400 of 2005 to restore IA No. 1400 of 2004. The said IA No. 1400 of 2005 was also dismissed against which the present Civil Revision Petition is filed. The suit was dismissed for default and the petition filed for restoration of the suit was also dismissed for non- production of receipt in token of payment of costs of Rs.1,000/- to the Legal Services Authority, even though the costs were paid on 22.8.2005 itself. Though there is negligence on the part of the petitioner but, however, as the application was filed only under Order 9 Rule 13 CPC for restoration of IA No. 1400 of 2004, I am of the opinion that the court below ought to have considered merits in I.A. No. 1400 of 2005. Having regard to the facts and circumstances of the case, it is just and proper to set aside the impugned order. Accordingly, the Civil Revision Petition is allowed and the impugned order is set aside and IA No. 1400 of 2005 stands allowed, subject to the condition of the petitioner paying a sum of Rs.2,000/- to the Legal Services Authority, Visakhapatnam, within a period of two weeks from the date of receipt of a copy of this order, failing which, the impugned order 10.4.2008 in IA No. 1400 of 2005 becomes operative. No order as to costs. ___________________ Justice V.Eswaraiah March 11, 2011 MAS