THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 1154 OF 2011 Dated: 21.10.2011 Between : Vasireddy Praveena … APPELLANT A N D Vempati Suresh …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 1154 of 2011 JUDGMENT: This Civil Miscellaneous Appeal, under order XLIII Rule 1(c) of the Code of Civil Procedure, 1908 (for short, ‘CPC’) is directed against the order, dated 16.09.2010 in I.A.No.284 of 2009 in O.S.No.73 of 2005 on the file of the Judge, Family Court-cum-Additional District Judge, Guntur, whereunder and whereby the application, filed under Order IX Rule 9 read with Section 151 CPC to restore the suit to its original file by setting aside the dismissal order, dated 03.03.2009, was dismissed for non-compliance of conditional order, dated 17.08.2010. 2. Appellant herein is the wife of the respondent herein. The Original Suit was filed by the appellant for present and past maintenance against the respondent. On 08.09.2009, summons on respondent through registered post with acknowledgement due were returned as refused and accordingly, he was set ex parte. As the appellant has not attended the Court for recording evidence, finally on 03.03.2009, the suit was dismissed for default. Thereafter, the present Interlocutory Application was filed. On 17.08.2010, the trial Court allowed the petition on condition of the appellant attending the Court on 16.09.2010 and file her chief-examination affidavit and get ready for ex parte evidence in the suit, failing which the petition stands dismissed. Since the appellant was called absent on 16.09.2010 and there was no representation on her behalf in the trial Court, the petition was dismissed. Hence, this appeal. 3. Heard. 4. Order IX Rule 9(1) CPC precludes the plaintiff whose suit is wholly or partly dismissed in default under Rule 8, from filing a fresh suit on the same cause of action. It is, however, open to the plaintiff to apply for setting aside an order of dismissal. If he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court may set aside the order of dismissal and may fix a day for proceeding with the suit. 5. As seen from the impugned order, it is clear that the appellant has already filed her evidence on 22.06.2010 and Exs.A1 and A2 were marked. So, basing on the evidence available on record, the trial Court ought to have decided the Suit in accordance with law. Hence, the impugned order is liable to be set aside. 6. Accordingly, the Civil Miscellaneous Appeal is allowed by setting aside the impugned order, dated 16.09.2010, in I.A.No.284 of 2009 in O.S.No.73 of 2005 on the file of the Judge, Family Court-cum- Additional District Judge, Guntur. There shall be no order as to costs. ____________ K.C. BHANU, J 21st October, 2011 Ivd