THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE P. SWAROOP REDDY C.M.A.No. 130 of 2010 Judgment: (Per Sri Justice Ghulam Mohammed) This civil miscellaneous appeal is directed against the order, dated 02.05.2008, passed by the learned Senior Civil Judge, Bhimavaram, dismissing I.A.No.2394 of 2007 in O.P.No.3 of 2006, filed under Order IX Rule 9 read with Section 151 CPC seeking to set aside the order of dismissal for default, dated 12.09.2007, passed in O.P.No.3 of 2006. 2. The appellant/husband filed O.P.No.3 of 2006 in the Court of the Senior Civil Judge, Bhimavaram, against the respondent/wife, for divorce. The said O.P. was dismissed for default on 12.04.2006 and the same was restored to file on the application filed by the appellant vide I.A.No.770 of 2006. The trial of the O.P., commenced and the matter was adjourned on several occasions for the evidence of the appellant and as there was no representation on his behalf, the trial Court ultimately passed an order of dismissal for default on 12.09.2007. The appellant filed I.A.No.2394 of 2007 under Order IX Rule 9 CPC with a prayer to set aside said order. The trial Court dismissed the said I.A. through order, dated 02.05.2008. Hence, this civil miscellaneous appeal. 3. Heard the learned counsel for the appellant and the learned counsel for the respondent. 4. Learned counsel for the appellant submitted that the parties have been living separately for more than nine years and the appellant is staying at Coimbatore on his professional work as Doctor. He further submitted that due to ill health, the appellant could not attend the Court and thus, he prays to give one more opportunity to him to proceed with the matter. 5. The O.P. is at the stage of commencement of trial. Though the O.P. was restored to file earlier by setting aside the order of dismissal for default, dated 12.04.2006, the appellant was not diligent in prosecuting the matter. Therefore, the trial Court taking into account the conduct of the appellant dismissed the I.A. But, however, in view of the nature of the proceedings, and in view of the fact that the husband and wife have been living separately for more than nine years, we are of the opinion that the matter has to be adjudicated on merits. Therefore, one more opportunity should be afforded to the appellant. 6. Hence, the Civil Miscellaneous Appeal is allowed, setting aside the order under appeal. I.A.No.2394 of 2007 shall stand allowed. No order as to costs. _____________________ GHULAM MOHAMMED, J _____________________ P. SWAROOP REDDY, J Date:06.10.2010. SJ