HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISCELLANEOUS APPEAL No.1097 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal, under Order – XLIII Rule – 1 of CPC, is directed against an order and decree made in I.A. No.1884 of 1996 in O.S. No.8 of 1985 dated 03-07-2001 on the file of the learned Additional Senior Civil Judge, Ongole, whereunder the application filed under Order – IX Rule – 9 of CPC seeking to set side the default order dated 06-09-1996 and restore the suit to its file, was dismissed. 2. Plaintiff - appellant and defendant No.1 – respondent No.1 are the brothers and respondent Nos.3 to 7 are the legal heirs. 3. It appears, appellant and respondent No.1 were partners of the firm under a partnership deed. Over a period of time, disputes arose, appellant laid a suit in O.S. No.8 of 1995 for dissolution of the partnership and for rendition of accounts. The suit itself was filed in 1985 and till April 1996, the suit had not come up for trial. 4. While that being so, on 06-09-1996, appellant gave a notice for production of certain documents by the other side, which were required to be marked in the suit and on the same day itself, suit was dismissed for default. Then, appellant filed I.A. No.1884 of 1996, under Order – IX Rule – 9 of CPC, seeking to set aside the default order and restore the suit to the file. The said application was dismissed. Aggrieved of the same, the present appeal is filed. 5. Sri P. Rajasekhar, learned counsel appearing for the appellant, strenuously contended that there was no default on the part of the appellant at any point of time during the course of hearing though the suit was pending for more than nine years as on 06-09- 1996. On 06-09-1996, appellant gave a notice to the other side for production of certain documents, which are required to be marked in the suit. However, when the case was called, appellant or his counsel was not present, therefore it was dismissed for default. On the very same day, I.A. No.1884 of 1996 was filed under Order – IX Rule – 9 of CPC, but the trial Court without considering the facts and circumstances of the case, dismissed the application, which is arbitrary and illegal. The trial Court could have given an opportunity to the appellant to prosecute the suit to its logical end, particularly this being a suit for dissolution of partnership and rendition of accounts between the brothers. In view of dismissal of the application under Order – IX Rule – 9 of CPC, irreparable loss has been caused to the appellant. Therefore, it is just and necessary to allow the appeal and restore the suit to the file of the trial Court. 6. None appears for the respondents. 7. There is no necessity of going into all the details of the case. 8. It is suffice to notice that the suit was filed in 1985. First time, for the evidence of PW.1, it had come up in April 1996, which is nine years after filing the suit. Though the application was filed immediately, it was dismissed on 03-07-2001. It appears, on 29- 10-2001, this appeal was formally presented into the registry of this Court and it was returned and re-presented and ultimately it was numbered only in 2005 as C.M.A. No.1097 of 2005. This itself would show the interest of the appellant in prosecuting the case. Now it is more than 25 years since the suit is filed. 9. The impugned application was dismissed for the following reasons: “A perusal of the affidavit shows that the petitioner did not attend the Court when the matter was called for, nobody represented the matter. The reason for not attending the Court, when the matter is called for, is that the vehicle of the respondent gave trouble and when he got it repaired, there is delay. No trust-worthy evidence is there on this aspect. The person, who repaired the same did not give any affidavit, at least, to show that the vehicle of the petitioner was repaired by him. On 6-9- 96 the Court made the following order: “P.N.R. Plaintiff requests further time through Sri P.S.R. Already sufficient time was given. Hence further time refused, as it is old matter. Plaintiff called absent. Suit is dismissed. No costs.” This Court has no justifiable reason to entertain this petition. Hence, this petition is dismissed.” 10. For the aforesaid reasons, I am of the considered opinion that restoring such a suit and permitting the appellant to prosecute the same, may not solve any purpose. Hence, the appeal is devoid of merits and is liable to be dismissed. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. ______________________ C.V. RAMULU, J August 19, 2010. PV