Decided on November 24,1963



- (1.) The petitioner is the defendant. The present revision arises against the appellate order interfering with the dismissal of an application under Order 9, Rule 9 CPC., and directing the restoration of the suit dismissed for default on 23-8-1980. The reason assigned for the absence on that day is that the counsel was out of station. The plaintiff was unwell and he requested his son to attend the court but in the meanwhile his scooter developed mechanical defect and therefore he could not reach the court in time. For the absence of the party the suit was dismissed for default. The petitioner resisted the application for restoration on the ground that the plaintiff did not prove that he was suffering from illness by adduction of medical evideace. The absence of the counsel is not a relevant ground. These contentions prevailed with the trial court, but on appeal the appellate court reversed that finding thus : "I came to the conclusion that the plaintiff-petitioner was prevented from attending court on 23-8-1980 due to sufficient grounds. I hold his absence is not willful. In the interest of justice and expediency and also in view of the merits of the case, I find this is a fit case to give opportunity to the plaintiff to adduce his evidance and have a contested disposal of the suit". Aggrieved by this order, the defendant-petitioner filed this revision.
(2.) In this revision petition, Sri E.S. Ramchandra Murthy, the learned counsel for the petitioner, contends that the whole approach of the appellate court is clearly erroneous. A Division Bench of the court in Surayanarayana Murthy v. Ramabhadra Raju has held that restoration is not automatic unless sufficient cause is shown. In G. V. Venkanna vs. M. Venkataramayya this Court has held that the absence of the counsel is mot a ground for setting aside the decree and the ratio therein also equally applies to the factc of this case. It is also contended that though the counsel was absent, nothing prevented the respondent to appear in the court and the Mason for his absence being his illness has not been established by medical evidence. Therefore, the view of the appellate court is clearly erroneous.
(3.) On the other hand, Sri Ramakrishna Raju, the learned counsel for the respondent, contends that the finding that there is sufficient cause for the respondent for not attending the court on 23-8-1980 is a finding of fact based on consideration of the relevant material before the court and it does not warrant interference in this revision petition. He also relies upon a decision Savithri Amma Seethamma vs. Ar atka Karthy wherein the Supreme Court held that the absence of the counsel at the time when the case was called is a sufficient ground to set aside the dismissal order. In view of this decision, the decision of this Court in G, V. Venkanna vs. M. VenkataRamayya is no longer a good law.;

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