THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 3781 OF 2010 Date of Judgment: 1.4.2011 Between: Koritala Thirupathaiah …Petitioner and Kommalapati Satyanrayana ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 3781 OF 2010 ORDER: The petitioner is the plaintiff in O.S.No. 119 of 2003 on the file of the Principal Junior Civil Judge, Parchuru which was filed for permanent injunction. The aforesaid suit was posted for trial on 27.6.2005 and it was adjourned on costs to 30.6.2005 and thereafter to 11.7.2005 and on 18.7.2005 it was dismissed for default. According to the petitioner, he went to Bellary in search of work in June, 2005 without informing his counsel and neither he got any intimation about the suit and its progress nor did he get letters from his counsel which were addressed to his permanent address at Devarapalli village. The trial court, on finding that neither the petitioner nor his counsel was present on 18.7.2005, dismissed the suit for default. The petitioner states in his affidavit that when he came back to Deverapalli village, he made inquiries with his counsel who informed him about the dismissal of the suit and immediately within 30 days he filed an application under Order 9, Rule 9 of the Civil Procedure Code, on 6.8.2005. The respondent filed a counter denying the petitioner’s allegations and based on the said counter, the trial court was of the opinion that the petitioner has not adduced any oral or documentary evidence in proof of his contentions that he went to Bellary in the month of June, 2005 and accordingly dismissed the suit for default. According to the trial court, the dismissal of the suit on 18.7.2005 was found justified and it refused to restore the suit. The appeal filed against the said order also met with the same fate and surprisingly the lower appellate court proceeds to dismiss the appeal on the ground that the petitioner could have availed cell phone or public telephone to communicate his counsel and that the petitioner had no interest in prosecution of the suit and it felt that instead of allowing the appeal, it was better to dismiss the appeal. The said order is, therefore, questioned in this revision petition. Heard learned counsel on either side. While it is true that the petitioner’s specific allegation in the affidavit that he went to Bellary in the month of June, 2005 was not controverted by the respondent in counter- affidavit, the trial court could not have rejected the restoration petition on the ground that the petitioner failed to adduce oral and documentary evidence in support of his contention that he went to Bellary. The court below failed to notice that since the said aspect was not controverted, it is deemed to have been established and admitted and it is not necessary for the petitioner to prove it once again. While accepting the contention that the petitioner had gone to Bellary in search of work, the lower appellate court also committed further error in holding that the petitioner could have used the facilities of cell phone or public telephone to communicate his counsel because the situation with regard to communications in 2005 were not so as they stand on the date of consideration by it, in 2010. Even otherwise, the sufficient cause shown by the petitioner ought to have been appreciated in the light of the pleadings of the respondent. The appellate court’s thinking that it was better to dismiss the appeal than to allow it, is also wholly unjustified, as such a course is contrary to the advancement of substantial justice. The contention of the learned counsel for the respondent about the previous default allegedly committed by the petitioner is also justified as the same cannot be taken into consideration and the sufficient cause on the date of dismissal of the suit is alone relevant. Therefore, I am inclined to allow the revision petition. The revision petition is accordingly allowed and the impugned order is set aside. The suit of the petitioner shall stand restored to its original number and the trial court shall hear and decide the suit in accordance with law within six months from the date of receipt of a copy of this order. The petitioner through his counsel undertakes that he shall cooperate with the trial court and shall not seek unnecessary adjournment. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 1.4.2011 KR