THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO.1231 OF 2009 DT.19.03.2010 (PER THE HON’BLE SRI JUSTICE R.KANTHA RAO) Between: M.Subba Rao ………………Appellant Vs. E.V.Prasad and three others ……………..Respondents JUDGMENT: 1) The present appeal is filed by the appellant/petitioner assailing the order passed in I.A.No.2143 of 2008 in O.S.No.43 of 2005, dt.24.11.2009 by the I Additional Chief Judge, City Civil Court, Secunderabad, wherein and whereby the application filed by the appellant/petitioner under Order 9, Rule 9 read with Section 151 C.P.C., seeking restoration of suit by setting aside the dismissal order dated 10.06.2008 was dismissed. 2) The facts of the case in brief are that initially the appellant/petitioner filed a suit in O.S.No.43 of 2005 seeking cancellation of registered sale deed against the respondents herein. Since there was no representation on behalf of the appellant/petitioner, the court below dismissed the said suit for default, with costs. Aggrieved thereby, I.A.No.2143 of 2008 was filed by the appellant/petitioner and the court below dismissed the said application without giving any opportunity to the appellant/petitioner. Hence, the present appeal is filed. 3) We have heard both the learned counsel. 4) The ground urged by the appellant/petitioner before the court below was that he was intending to change his counsel in the suit and was in search of a new counsel to be appointed to prosecute his case, he was neither informed about the date of hearing nor his counsel appeared before the court below on the date of hearing and therefore non- appearance of the appellant/petitioner is neither wilful nor intentional. In the counter affidavit filed by the respondents it is stated that the appellant/petitioner filed the suit without any basis and as the appellant/petitioner has no right in the suit schedule property and that the application to restore the suit is liable to be dismissed. After going through the rival contentions, the learned trial court dismissed the application filed by the appellant/petitioner holding that except the mere assertion by the appellant/petitioner that he was intending to change his counsel and was in search of a new counsel, no other sufficient reason was assigned for his absence and that only with a view to drag on the proceedings, he filed the restoration petition. 5) The learned counsel for the appellant/petitioner submits that without giving an opportunity of hearing to the appellant/petitioner, the court below dismissed the suit at the stage of commencement of trial and since there is no wilful default on the part of the appellant/petitioner, the suit is liable to be restored. 6) There is no dispute about the fact that the appellant was intending to change his counsel in the suit which clearly indicates that the appellant/petitioner was not aware of the proceedings. The suit was dismissed for default on 10.06.2008. The petition filed by the appellant/petitioner, dated 19.06.2008 with a prayer to restore the suit was dismissed by the court below on 24.11.2009 without assigning any reasons. Therefore, we are not able to agree with the conclusion arrived at by the trial court in dismissing the application and we are of the considered view that the order is not sustainable. Therefore, we are inclined to set aside the order passed by the court below in I.A.No.2143 of 2008 in O.S.No.43 of 2005. 7) Accordingly, the order dated 19.06.2008 passed in I.A.No.2143 of 2008 in O.S.No.43 of 2005 is set aside. O.S.No.43 of 2005 is restored to file. The court below is directed to dispose of the suit within a period of four months from the date of receipt of a copy of this order. 8) Accordingly, the C.M.A. is allowed. No costs. ________________ B.PRAKASH RAO J., _______________ R.KANTHA RAO J., Dt.19.03.2010 tjs