THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.239 of 2006 JUDGMENT: This appeal is filed against the orders in I.A.No.188 of 2005 in A.S.No.42 of 1997 on the file of the IV Additional District Judge, Nellore, dated 12-09-2005, whereby the petition filed by the appellants under Order 41, Rule 19 C.P.C. to restore the appeal was dismissed for default. The respondents/plaintiffs filed O.S.No.289 of 1992 on the file of the Principal District Munsif, Nellore for declaration that the appellants/defendants have no right of passage for their plot ‘X’ of the plaint plan across the plot ‘Y’ of the plaint plan and through their site ‘EFHI’ situated in front of the site of the respondents/plaintiffs’ plot ‘Z’ on the south to reach the municipal road situated on the south and for consequential relief of permanent injunction. The suit was decreed by judgment dated 15-11-1996. Aggrieved by the same, the appellants/defendants filed A.S.No.42 of 1997. The matter was coming up for hearing from time to time and ultimately the matter was posted on 23-06- 2005. As the appellants/defendants were called absent and as there was no representation till 2.00 PM, the appeal was dismissed for default. The appellants/defendants therefore filed I.A.No.188 of 2005 for restoration. The Court having regard to the fact that the hearing of the appeal had undergone adjournments several times and as the appellants/defendants were absent even on the last day, dismissed the petition observing that the appellants/defendants had not shown interest in prosecuting the case. The appellants/defendants, therefore, filed the present miscellaneous appeal seeking restoration of the Appeal Suit. Heard both the counsel. The learned counsel Sri Someswara Rao appearing for the appellants/defendants submitted that there was sufficient cause for the non-appearance of the appellants/defendants on 23-06- 2005. He submitted that on the said day after the matter was passed over, the advocate became unwell and went to his family doctor for check up. The first appellant actually went to inform the Advocate that the matter had been passed over, during which time, the appeal suit was dismissed for default. He therefore submitted that absence of the appellants/defendants was not wilful and they might be given opportunity to contest the matter on merits. The learned counsel Smt.J.Kusumavathi appearing for the respondents/plaintiffs submitted that the matter had undergone 45 adjournments and the appellants/defendants did not evince any interest to prosecute the appeal. She submitted that the Court, after noticing the past conduct of the appellants/defendants, rightly dismissed the I.A. She therefore submitted that the order under appeal need not be interfered with. I considered the matter with reference to the averments made in the affidavit sworn by the first appellant filed in support of the I.A. and also the counter filed on behalf of the respondents/plaintiffs. It is true that prior to 23-06-2005, the matter had undergone several adjournments. Past conduct no doubt shows the attitude of the appellants/defendants to some extent to prolong the hearing. However, as per the averments made in the affidavit filed in support of the I.A., the counsel engaged by the appellants/defendants had to abruptly go for medical check up and the Deponent had gone to inform the Advocate that the matter was passed over and in the process there was no appearance when the matter was called. I am of the considered opinion that there was sufficient cause for the non-appearance by the parties on 23-06-2005. I am inclined to allow the petition in order to provide an opportunity and to have the matter considered on merits. At the same time, having regard to the inconvenience and hardship caused to the respondents/plaintiffs, I am inclined to award costs of Rs.5,000/-. The amount of costs shall be paid to the learned counsel for the respondents Smt.J.Kusumavathi within a period of two weeks from today and in default this order stands dismissed. The I.A.No.188 of 2005 is accordingly allowed. Consequently, A.S.No.42 of 1997 be restored and the same may be disposed of as early as possible preferably within a period of two months from the date of receipt of a copy of this order. C.M.A. is allowed accordingly. ________________ NOUSHAD ALI, J. 24th February, 2010. skmr THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.239 of 2006 Date : 24-02-2010 Between : Arava Prasad and another .. Appellants And Chandragiri Mohan and another .. Respondents