AMAN ALLI SAHEB Vs. K VENKATA RAMA SURYANARAYANA SUBBA RAJU

JUDGEMENT

(1.) The petitioner is the defendant. The present Revision arises against the Appellate Order interfering with the dismissal of an application under O. 9, R. 9, C. P. C., and directing the restoration of the suit dismissed for default on 23-8-1981. 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 evidence. The absence of the counsel was not a relevant ground. These contentions prevailed with the trial Court but on appeal the appellate Court reversed that finding thus :

(2.) In this revision petition, Sri E. S. Ramachandra Murthy, the learned counsel for the petitioner, contends that the whole approach of the appellate Court is clearly erroneous. A Division Bench of this Court in Suryanaraya Murthy v. Ramabhadra Raju, 1960 ALT 904, had held that restoration is not automatic unless sufficient cause is shown. In G. V. Venkanna v. M. Venkataramayya, (1981) 1 APLJ (HC) 333 : (AIR 1981 Andh Pra 199), this Court had held that the absence of the counsel is not a ground for setting aside the decree and the ratio therein also equally applies to the facts of this case. It is also contended that though the counsel was absent, nothing prevented the respondent to appear in the Court and the reason 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 in Savitri Amma Seethamma v. Aratha Karthy, AIR 1983 SC 318, 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 v. M. Venkataramayya (cited supra) is no longer a good law.