THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.576 of 2011 (Dated : 14-06-2011) Between: Nagam Papireddy S/o Pratap Reddy and another …Petitioners A n d P.Ramchander and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.576 of 2011 ORDER: This revision is directed against the order dated 13.9.2010 passed in C.M.A.No.10 of 2009 on the file of Senior Civil Jude, Nagarkurnool, whereby and whereunder, the learned Senior Civil Judge dismissed the appeal filed by the petitioners-appellants confirming the order dated 28.1.2009 passed in I.A.No.261 of 2008 in O.S.No.70 of 2001 on the file of Junior Civil Judge, at Nagarkurnool. 2. The petitioners are the plaintiffs in O.S.No.70 of 2001 and whereas the respondents are the defendants in the said suit. The plaintiffs filed the suit for injunction in respect of the suit schedule property. The respondents-defendants filed written statement. The petitioners-plaintiffs filed the chief-affidavit of Pw.1 on 3.5.2005. Pw.1 failed to turn up for cross-examination despite granting number of adjournments. On 01.9.2008, the suit of the petitioners-plaintiffs came to be dismissed for default. The petitioners-plaintiffs filed I.A.No.261 of 2008 under Order IX Rule 9 CPC read with Section 151 CPC seeking restoration of the suit. It is stated in the affidavit filed in support of the petition that petitioner No.1 fell ill and therefore, he could not attend the Court on 01.9.2008. It is also stated in the affidavit that petitioner No.2 was out of station and therefore, he was also not in a position to attend before the Court on the date of trial. 3. The respondents-defendants filed counter resisting the application. For better appreciation, I may refer the relevant portion of the counter affidavit filed by the respondents-defendants, which reads as hereunder:- “ Further, I submit that the averments under the affidavit as the deponent was not feeling well is created story and he is hale and healthy and further and second plaintiff is also very much available in the village but both the plaintiffs intentionally did not approach the Hon’ble Court to prosecute their case. That, I submit that as there is no case on behalf of the plaintiffs they did not show any interest in prosecuting their case and their sole intention is to harass us and to create trouble us in our enjoyment over our land”. 4. The trial Court, on considering the material brought on record and taking into consideration the docket proceedings, came to the conclusion that the petitioners-plaintiffs failed to make out sufficient explanation for their non-appearance on 01.9.2008, and thereby, proceeded to dismiss the application, by order dated 28.1.2009. 5. The petitioners filed C.M.A.No.10 of 2009 on the file of Senior Civil Judge, Nagarkurnool assailing the order dated 28.01.2009 passed in I.A.No.261 of 2008. 6. The learned Senior Civil Judge, on reappraisal of the material brought on record, did not find any valid ground to interfere with the order impugned in the appeal and thereby, proceeded to dismiss the appeal, by judgment dated 13.9.2010. Hence this revision by the petitioners-plaintiffs. 7. Heard learned counsel appearing for the petitioners-plaintiffs and learned counsel appearing for the respondents-defendants. 8. Learned counsel appearing for the petitioners-plaintiffs submits that the substantial rights of the petitioners-plaintiffs are involved and they deserve to be permitted to get the dispute adjudicated on merits. A further submission has been made that the petitioners offered sufficient reason for their absence on 01.9.2008 and the reason assigned by them has not been correctly appreciated by the trial Court as well as the lower appellate Court and therefore, the order passed by the trial Court as confirmed by the lower appellate Court deserves to be set aside and the suit is to be restored to file. 9. Learned counsel appearing for the respondents-defendants submits that the petitioners-plaintiffs came up with the plea that the 1st petitioner fell ill and whereas the 2nd petitioner was out of station on 01.9.2008. The respondents-defendants have specifically denied the said averment by filing counter, but the petitioners-plaintiffs failed to adduce any evidence to substantiate the reason assigned by them for their absence on 01.9.2008, in which case, the order passed by the trial Court as confirmed by the appellate Court does not warrant interference. In support of his submissions, reliance has been placed on the decision of Supreme Court in Parimal v. Veena[1]. 10. The petitioners-plaintiffs pleaded in the affidavit filed in support of the petition that the 1st petitioner fell ill and whereas the 2nd petitioner was out of station and therefore, they were not in a position to attend the Court on 1.9.2008. The respondents-defendants specifically denied the averment regarding the alleged ill-health of the 1st petitioner. They also pleaded in the counter that the 2nd petitioner was very much present in the village and that their absence on 01.9.2008 was not willful. Despite specific denial of the respondents-defendants, the petitioners-plaintiffs did not choose to adduce any evidence or place on record any material to substantiate their affidavit averments. The trial Court has taken note of the conduct of the petitioners in proceeding with the case. Pw.1 chief affidavit came to be filed on 3.3.2005. Since then, Pw.1 has not turned up for cross examination . The trial Court, having taken note of the conduct of the petitioners, proceeded to dismiss the application. The lower appellate Court also considered the reason assigned by the trial Court for dismissal of the application and did not find any reason to interfere with the order. In that view of the matter, I do not see any valid ground to disturb the findings recorded by the trial Court as confirmed by the lower appellate Court. 11. Accordingly, the Civil Revision Petition is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.14-06-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.576 of 2011 (Dated : 14-06-2011) [1] 2011(2) ALT 3 (SC)