IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE.10-03-2011. CIVIL MISCELLANEOUS APPEAL No.528 OF 2007 PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY Between: C. Sampath Kumar. --- Appellant/ Petitioner. AND M. Goverdhan Reddy. --- Respondent/ Respondent. The Court made the following: HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.528 OF 2007 JUDGMENT: 1. This Civil Miscellaneous Appeal filed under Order 43 Rule 1 (T) of C.P.C. seeking to set aside order dated 14-06-2007 passed in I.A. No.569 of 2007 in O.S. No.411 of 2005 filed under Order 41 Rule 19 of C.P.C. to set aside order of dismissal of Appeal dated 26-03-2007 on the file of I Additional District Judge, Mahabubnagar, dismissing the claim. 2 . The appellant is the petitioner and the respondent is the respondent in the Interlocutory Application. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the Interlocutory Application. 3. The Interlocutory Application was filed under Order 41 Rule 19 of C.P.C. to set aside the order of dismissal of Appeal dated 26-03- 2007 on the ground that the counsel of the petitioner failed to enter in his diary the date of adjournment of the Appeal as 26-03-2007 and therefore when the matter came up before the Court the petitioner was called absent and the Appeal was dismissed and there was no deliberate intention on the part of the petitioner in doing so and unless the application was allowed the petitioner would be put to irreparable loss. 4. No counter was filed by the respondent in the matter. 5. Learned I Additional District Judge, Mahabubnagar dismissed the application with the following observations : “I have gone through the appeal docket and it is found that consistently for 3 adjournments namely 21-03- 2007, 22-03-2007 and 26-03-2007 this appellant was called absent and there was no representation on his behalf. O n 22-03-2007 this Court has specifically ordered that appeal would be dismissed don 26-03-2007 if no arguments are adduced. In spite of this Court direction, the appellant did not come forward for arguments and hence the appeal was dismissed. The appellant has not filed his affidavit but his counsel filed affidavit stating that on 26-03-2007 he could not enter the date of adjournment in the diary and therefore there was no representation on his behalf. However, his affidavit does not explain the reasons why there was no enquiry of the next date of adjournment consecutively for three adjournments. In the circumstances, there is no sufficient cause to allow this petition and to restore the Appeal for hearing. The suit is filed for permanent injunction in the year 1999 and it was dismissed in the year 2005 on contest. On such dismissal, this Appeal has been preferred, but the appellant never reported ready for hearing. Under these circumstances, the petition is devoid of merits and hence dismissed”. 6. Therefore, the point for determination is : Whether sufficient reasons were given to set aside the order of dismissal of the Appeal in the lower Court and whether the lower Court properly examined the matter? 7. The record clearly provides that three adjournments were given to the petitioner for advancement of his arguments in the Appeal but all the opportunities were not availed by the petitioner. However, it is to be mainly taken into consideration the alleged default committed by the petitioner on the date of dismissal of the Appeal. If appropriate reasons are given in that context the fact that he failed to take necessary steps in the matter earlier need not be taken into consideration, it may help to ascertain his over all conduct. Usually, Advocates note down date of adjournments of relevant matters before the Courts of Law following which they take necessary measures to contact their clients and also to proceed further in those matters. Hence, such aspects also need to be taken into consideration while examining such applications. If those applications are dismissed on the ground of non filing of necessary affidavits by the parties concerned much injustice may be caused to the parties. No doubt as per law parties have to file their affidavits along with their petitions before the Courts whenever such need arises, but the law does not provide that affidavits filed by their counsels consequently should not be taken into consideration. In fact, in my opinion, the counsel for the petitioner gave a valid reason about his absence before the lower Court at the relevant point of time but the party and counsel should have been more diligent enough to take necessary steps at appropriate time. In the result, the Civil Miscellaneous Appeal is allowed and the impugned order is set aside on paying costs of Rs.1,000/- by the petitioner to the District Legal Services Authority, Mahabubnagar, within fifteen (15) days from the date of receipt of a copy of this order and serving necessary notice on the petitioner consequently. No costs. ___________________________ G. KRISHNA MOHAN REDDY, J Date.10-03-2011. Dsh