CHODAVARAPU SATYANARAYANA BEING MINOR Vs. CHODAVARAPU KRISHNAMURTHY

JUDGEMENT

(1.) This is an appeal against the decision of the Subordinate Judge, Masulipatam, in O.S. No. 165 of 1952. The facts relevant for the disposal of this appeal are briefly these :

(2.) On hehalf of a minor, Chodavarapu Venkata Satyanarayana his next friend, one Vinnakota Rajagopalarao instituted the present suit in forma pauperis in the year 1949 praying first for the cancellation of the decree in O.S. No. 451 of 1944, on the file of the District Mun-siff Court, Masulipatam, and A.S. No. 90 of 1947 on the file of the Subordinate Judges Court, Masulipatam, and secondly, for the partition of the plaint schedule properties and for the due allotment of the sliare of the plaintiff and separate possession thereof.

(3.) Into the various allegations contained in the plaint and the counter allegations made by the defendants in their written statements, we do not propose to enter- The suit was being adjourned from time to time for steps and service. Eventually, issues were settled on 21-9-1953, and the suit was set down for trial. On 1-2-1954 an application was made on behalf of the1 plaintiff for the addition of new parties and the suit was being adjourned for taking steps to serve the additional parties.After service the case was adjourned several times as neither side was ready. Eventually it was posted for trial on 4-3-1955. On that date an application for an adjournment was made on behalf of the next friend of the plaintiff, as lie was unready to proceed with the trial- The suit was finally adjourned to 5-4-1956. On that date the plaintiffs next friend was absent and no steps were taken by him to prosecute the suit though the defendants and their counsel were ready to proceed with the trial.The learned Judge thereupon passed an order adjourning the suit for trial to 15-4-1955 on condition that the plaintiffs next friend should pay to defendants a sum of Rs. 25.00 as costs. On 15-4-1955 when the case was called it transpired that the plaintiffs next friend did not pay the costs in conformity with the directions given by the court on 5-4-1953. He filed an application supported by an affidavit on 14-4-1955 requesting the court to set aside the order made on 5-4-1955 directing him to pay Rs. 25.00 as costs to the defendants.In that application he stated that he was suffering from fever from 1-4-1955 to 14-4-1955 and that he was taking medicine from one Dr. K. Subbarao. In the affidavit he stated that during the week previous to the filing of the affidavit he was serious for more than three days and was also unconscious and, therefore, could, not attend the court on 5-4-1955 or send instructions to his counsel. In support of that application he relied on an endorsement made on his application by a medical practitioner to the following effect: "The contents of this are true. He taking medicine from me".The learned Judge rejected the application to set aside the previous order and having done so, dismissed the suit on the ground that, inasmuch as the conditional order had not been complied with, he had no option left but to dismiss the suit and accordingly did so directing the plaintiffs next friend to pay the court-fee due to the Government and costs to the defendants. This appeal is against that order.