IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE NINETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2240 OF 2008 Between: Fairoza Khatoon. --- Petitioner/ Appellant/ Petitioner/ Plaintiff. AND Arshia Nasreen. --- Respondent/ Respondent/ Respondent/ Defendant. The Court made the following: THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2240 OF 2008 ORDER: The petitioner is plaintiff in O.S. No.1280 of 1999 on the file of XI Additional Senior Civil Judge, City Civil Court, Hyderabad. The said suit for specific performance was part heard as the petitioner had examined him as PW.1 and had also examined PW.2 by October, 2003. The said suit thereafter was posted to 22-06-2006 for further evidence of the petitioner-plaintiff. As neither the petitioner nor her counsel attended the Court on that day, the suit was dismissed accordingly. The petitioner filed an affidavit in I.A. No.325 of 2006 in O.S. No.1280 of 1999 within 30 days of limitation by stating that on that particular date of hearing she was un-well and bedridden and her counsel had to go to Kodad, Nalgonda District, to attend the funeral of his maternal uncle. A formal counter was filed by the respondent but the Court below dismissed the application not on the ground of sufficient cause shown by the petitioner but on the ground that in the said I.A. No.325 of 2006, petitioner’s counsel was absent on few dates and thereby the trial Court records that it has no confidence in the petitioner to get along with the suit even if restored. The petitioner therefore filed an Appeal before the lower appellate Court, which has confirmed the order of the lower Court on the ground that Medical Certificate or affidavit of the counsel is not filed. Hence, this Writ Petition. Heard the learned counsel for the petitioner. Respondent though served as early as on 13-08-2010, there is no appearance on behalf of the respondent. The trial Court had to examine whether the cause shown by the petitioner was sufficient cause or not, and as mentioned, it has not dismissed the restoration petition of the petitioner on that ground. It is also to be noted that there was no serious contest on behalf of the respondent and the petitioner who had already examined two witnesses in the suit as PW.1 and PW.2, it cannot be said that the petitioner has no interest in proceeding with the suit. Similarly, the statement in the petitioner’s affidavit that the counsel had to leave station to attend funeral of his maternal uncle was not and could not have been disputed either by the respondent or by the lower appellate Court and no affidavit of the counsel was warranted in respect of his said statement. Both the courts below have therefore taken a highly pedantic view and have erroneously rejected the petitioner’s application for restoration. I am therefore, inclined to set aside the impugned orders, however, the petitioners conduct cannot be said to be entirely diligent. He shall therefore be liable to pay costs of Rs.2,500/- (Rupees two thousand five hundred only) to the respondent either directly to the respondent or by depositing the same to the credit of the suit, within four weeks from today. The impugned orders are accordingly set aside, the suit O.S. No.1280 of 1999, before the learned XI Additional Senior Civil Judge, City Civil Court, Hyderabad, shall stand restored subject to the condition of the petitioner paying an amount of Rs.2,500/- to the respondent or depositing the same to the credit of the suit, within four (4) weeks from today. In the event of the default on the part of the petitioner in paying or depositing the said amount, he shall not be entitled to restoration of the suit. Similarly, after compliance of the order as above, the learned XI Additional Senior Civil Judge, City Civil Court, Hyderabad, shall fix a date of hearing and proceed with the suit in accordance with the law and expeditiously dispose of the suit, on or before 30th April, 2011. With the above observation, the Civil Revision Petition is disposed of. No costs. ________________________ VILAS V. AFZULPURKAR, J. Dt. 09-12-2010. DSH