VIVEKANANDA PUBLIC SCHOOL MEDAK Vs. P HYMAVATHI

JUDGEMENT

(1.) This revision is filed against the order dated 8-10-2001 in I.A.No.378 of 2001 in O.S.No.89 of 1997 on the file of the Senior Civil Judge, Medak, allowing a petition filed under Order IX Rule 9 read with Section 151 C.P.C. restoring the suit O.S.No.89 of 1997, which was dismissed for default on 24-9-2001, to file.

(2.) The respondent filed the suit for recovery of Rs.81,524.00, said to be the arrears of rent due for the premises taken on lease by the revision petitioner. On 24-9-2001 when the suit was posted for trial, a petition under Order XVII Rule 1 C.P.C. was filed on behalf of the respondent to adjourn the case to some other date, accompanied by the affidavit of the counsel for the respondent stating that he received a telegram from the respondent informing him that as she is suffering from high fever she cannot attend Court on that day and so an adjournment may be taken. That petition for adjournment was dismissed on being opposed by the petitioner. Consequently the suit also was dismissed for default for the absence of the respondent. Subsequently the respondent filed a petition I.A.No.378 of 2001 under Order IX Rule 9 C.P.C. contending that she could not attend the Court on 24-9-2001 as she was suffering from high fever and that she had in fact informed her Advocate about her ill-health through a telegram, and since her non-appearance on 24-9-2001 was neither intentional nor willful, but was due to her being unwell, the order of dismissal of the suit for default, passed on 24-9-2001 maybe set aside and the suit may be restored to file. The petitioner opposed that petition on the ground that since the petition for adjournment filed on 24-9-2001 on the very same ground was dismissed, this petition on the same grounds is not maintainable. No evidence either oral or documentary was adduced by the parties. The learned Senior Civil Judge by the order under revision, allowed the petition, inter alia, on the ground that the respondent who was present along with her Doctor at the time of presentation of the petition assured that she would cooperate with the Court for early disposal of the case.

(3.) The main contention of the learned counsel for the revision petitioner is that since the averments in the affidavit filed in support of the petition filed under Order XVII Rule 1 C.P.C. on 24-9-2001, and the averments in the affidavit filed in support of the petition filed under Order IX Rule 9 C.P.C. are one and the same, and since the petition filed under Order XVII Rule 1 C.P.C. was dismissed on 24-9-2001, the learned Judge committed an error in allowing the petition filed under Order IX Rule 9 C.P.C. It is also his contention that the Court below committed a grave error in taking into consideration the oral representations allegedly made by the petitioner behind back of the petitioner, that she would cooperate with the Court in early disposal of the case, and making that representation a ground for allowing the petition, without giving an opportunity to the petitioner to say what he has to on the said representation, more so when there is nothing on record to show that the petitioner along with her Doctor was present in Court and had presented petition in person at the Bench. Placing strong reliance on BHUPATHI RAJU SURYANARAYANA RAJU vs. BANTUPALLI APPANNA AND ANOTHER1 and ARJUN SINGH vs. MOHINDRA KUMAR AND OTHERS2, he contended that since the petition seeking an adjournment from 24-9-2001 was dismissed on the ground that respondent failed to establish that she was unwell on that date, in a petition filed under Rule 9 of Order IXCPC, it cannot be said that the respondent could establish that she was unwell on 24-.9-2001.