IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.7 OF 2010 Between: Kavikonda Surya Rao and others .....APPELLANTS AND Bollaprada Varahalu (Died) and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.7 OF 2010 JUDGMENT: This Civil Miscellaneous Appeal, under order XLIII Rule 1 (t) of the Code of Civil Procedure, 1908, is directed against the order, dated 08.07.2009, in I.A.No.707 of 2009 in A.S.No.308 of 2007 on the file of VII Additional District Judge (Fast Track court), Visakhapatnam, whereunder and whereby, the application filed to restore A.S.No.308 of 2007 to its original file was dismissed. 2. Learned counsel for the appellants contended that on the same day of the dismissal of the appeal suit i.e., on 13.04.2009, the Senior counsel appearing for the appellants in the appellate Court died and therefore, he could not attend the Court on 13.04.2009 to represent the appeal; that therefore appeal suit was dismissed for default, and hence, he prays to set aside the impugned order. 3. On the other hand, learned counsel for the respondents contended that the affidavit of the advocate has not been filed. 4. It is stated in the affidavit filed in support of the petition that appellant No.1 was not present on 13.04.2009 due to heavy fever. No doubt the appellate Court has shown indulgence to the appellants to proceed further, but both the parties have not represented the matter for several adjournments. Ample opportunity was given to the appellants in the impugned application also, but there was no representation on 23.06.2009 also. Considering the fact that the learned senior counsel appearing for the appellants died on the same day of the dismissal of the appeal i.e., on 13.04.2009, it can be said that proper reason is given by the appellants for not attending the Court on 13.04.2009. In the peculiar circumstances, the appellate Court ought to have given opportunity to the appellants to contest the matter. Hence, the impugned order is liable to be set aside. 5. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order and allowing I.A.No.707 of 2009 in A.S.No.308 of 2007. There shall be no order as to costs. _______________ K.C. BHANU, J March 10, 2010 MD/YVL