HONOURABLE SMT. JUSTICE T.MEENAKUMARI & HONOURABLE SRI JUSTICE GOPALA KRISHNA TAMADA C.M.A No:1005 OF 2009 Dated: 14.7.2010 Between: Sri Ankam Nageshwara Rao ..Appellant And Smt. Pasagadi Gowriswari. .. Respondent. This Court made the following HONOURABLE SMT. JUSTICE T.MEENAKUMARI & HONOURABLE SRI JUSTICE GOPALA KRISHNA TAMADA C.M.A. No:1005 OF 2009 JUDGMENT: (Per Hon’ble Smt. Justice T. Meena Kumari) Aggrieved by order, dated 16.3.2009 passed in I.A.No.240 of 2009 in I.A.No.2318 of 2008 in O.S.No.21 of 2006 by the Principal District Judge, East Godavari District, Rajahmundry, this appeal has been preferred. The appellant herein is the plaintiff and the respondent is the defendant before the Court below. For the sake of convenience, the status of the parties will hereinafter be referred to as arrayed in the suit. Originally, the above suit was filed by the plaintiff for specific performance of an agreement of sale. When the plaintiff failed to attend the Court on the date on which the suit was posted for trial, the exparte order was passed. On that, the plaintiff filed I.A.No.2318 of 2008 seeking to set aside the exparte order. The said application was heard in part and then, it was posted to 17.12.2008. But on that day, there was no representation on behalf of the plaintiff and hence, the said application was dismissed. On that, the plaintiff filed the above application in I.A.No.240 of 2009 seeking to restore I.A.No.2318 of 2008 on the ground that the matter was posted to 17.12.2008 for filing list of witnesses. But, unfortunately, his counsel noted the date as 18.12.2008 instead of 17.12.2008, and therefore, there were no willful laches on his part. The Court below dismissed the above application. Hence, the present appeal. Heard the learned Counsel and perused the material available on record. On 15.6.2010, this Court permitted the learned Counsel for the appellant to send the notice to the respondent and file proof of service. Accordingly, notice was served on the respondent and proof of service was also filed with the registry under USR No.929 of 2010, dated 6.7.2010. In spite of service of notice, neither any representation is made nor any counter affidavit is filed. The reason assigned by the Counsel for the appellant- plaintiff is that his Counsel noted the date of hearing as 18.12.2008 instead of 17.12.2008 and therefore, he could not attend the Court on the actual date of hearing and his absence on the date of hearing is neither intentional nor wanton. It appears that due to miscommunication of the date of hearing, the plaintiff could not attend the Court. If the order impugned herein were set aside no prejudice would be caused to the other side. In this view of the matter and in view of the reasons assigned by the appellant-plaintiff, we feel that the order of the Court below can be set aside. Accordingly, the CMA is allowed setting aside the order impugned herein. Consequently, I.A.No.240 of 2009 is allowed. No order as to costs. ________________________ Justice T. Meena Kumari _______________________________ Justice Gopala Krishna Tamada Date: 14th July, 2010 Nn. HONOURABLE SMT. JUSTICE T.MEENAKUMARI & HONOURABLE SRI JUSTICE GOPALA KRISHNA TAMADA CMA No:1005 OF 2009 (Judgment delivered by the Hon’ble Smt. Justice T. Meena Kumari) 14.07.2010