THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY C.M.A.No.194 of 2011 JUDGMENT: The appellant filed O.S.No.277 of 2008 in the Court of the II Additional Senior Civil Judge (Fast Track Court), Nellore against the respondent for recovery of a sum of Rs.8,10,000/-. The suit was dismissed for default on 15.10.2009. He filed I.A.No.780 of 2009 under Order 9 Rule 9 C.P.C. with a prayer to set aside the order, dated 15.10.2009. It was pleaded that the appellant suffered from cardiac problem and was held up at Hyderabad for about one month and thereby, he could not appear in the Court. The application was opposed by the respondent by filing a counter. The trial Court dismissed the I.A., through order, dated 29.11.2010, observing that the appellant failed to adduce evidence and there are no bona fides in his assertion as to the health condition. The same is challenged in this appeal. The learned counsel for the appellant submits that the trial Court was not justified in observing that the appellant failed to adduce evidence, since the record discloses that the trial could not be taken up on account of the pendency of an interlocutory application. He further submits that the appellant has undergone treatment in a hospital at Hyderabad for Cardiac problem and that even in Nellore, he has been taking treatment at B.R.M. Hospitals private Limited. The learned counsel for the respondent, on the other hand, submits that having filed the suit, the appellant did not evince any interest and the trial Court was vexed with the attitude. He further submits that except taking the plea that the appellant suffered cardiac problem and remained at Hyderabad, no material was placed to substantiate it. The suit was filed for recovery of amount. The trial Court dismissed it for default on 15.10.2009. The application filed by the appellant under Order 9 Rule 9 C.P.C. was dismissed on the ground that he failed to adduce evidence. The appellant has placed before this Court a copy of the docket order. It appears that further progress in the suit was hindered mostly on account of the pendency of I.A.Nos.780 of 2009, 81 of 2010 etc. It is also evident that before the suit came to be dismissed for default, it was not taken up for hearing on 25.08.2010 and 01.10.2010 due to the fact that the Presiding Officer was on casual leave and on official duty respectively. The order, dated 01.10.2010, discloses that it was directed to be called on 21.10.2010. The circumstances under which the suit was called on 15.10.2010 are not evident. At no point of time, the case was listed for recording of evidence. Under these circumstances, it cannot be said that there was any wanton default or negligence on the part of the appellant. The appellant deserves to be given an opportunity. Hence, the appeal is allowed and the order under appeal is set aside. The suit shall stand restored to file. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.06.07.2011. kdl