VEMANA VENKATARATNAM Vs. KOPPANNA CHAKRADHARUDU

JUDGEMENT

(1.) This revision under Article 227 of the Constitution of India, is directed against the orders of the Senior Civil Judge, Peddapuram dated 10-07-2009 made in C.M.A. No. 10 of 2005, whereby the appeal filed by the petitioner was dismissed confirming the dismissal of I.A. No. 126 of 2005 in O.S. No. 72 of 1997, filed under Order IX Rule 9 of the Civil Procedure Code (for brevity, "CPC"), for restoration of the suit, which was dismissed for default on 28-02-2005.

(2.) Petitioner/plaintiff instituted the above suit for permanent injunction restraining the defendants, their henchmen, followers from interfering with his peaceful possession and enjoyment of the plaint schedule property, contending that himself and the defendants are the children of late Koppana Chinna Apparao. Plaint schedule properties and other properties have been in possession and enjoyment of late Koppana Chinna Apparao till his death. During his life time, he executed a Will deed dated 05-12-1995 bequeathing the plaint schedule properties in favour of the plaintiff in a sound and disposing state of mind and ever since he is in possession of the same. The defendants are proclaiming that they will trespass into the plaint schedule properties and dispossess the plaintiff therefrom. The said suit was posted for trial on 28-02-2005, but the petitioner/plaintiff, who appeared through his counsel has not entered into the witness box to lead evidence. Therefore, the said suit was dismissed for default. On dismissal of the suit, I.A. No. 126 of 2005 was filed contending that on 28-02-2005 when the suit was posted for trial, petitioner/plaintiff was suffering with high fever and represented before the trial court that he is unable to give evidence. In spite of the same, . the suit was dismissed for default and hence, the same has to be restored. The respondents/defendants filed a counter opposing the petition stating that the decree and judgment in the suit was passed on 28-02-2005 on merits, against which only an appeal lies and hence, the application under Order IX Rule 9 of the CPC is not maintainable.

(3.) The trial court by order dated 27-09-2005 dismissed the LA; holding that the plaintiff appeared through his Advocate, but, however, the Advocate was not ready to proceed with the matter. On dismissal of the LA., he filed C.M.A. No. 10 of 2005 before the Senior Civil Judge's Court, Peddapuram, who dismissed the appeal holding that when the plaintiff was very much present in the Court and did not proceed with the trial of the suit, the provisions of Order IX Rule 9 of CPC are not applicable. A plain construction of scheme of Order IX Rule 8 and Rule 9 of CPC discloses that the said provisions apply only where the defendants appear and the plaintiff does not appear. Therefore, the application filed under Order IX Rule 9 of the CPC is not maintainable.