B MALLIKARJUNA REDDY Vs. G V SUBBA REDDY

JUDGEMENT

(1.) This civil miscellaneous appeal is filed as against an order made in IA No.289 of 2005 in OS No.225 of 2004 on the file of II Additional Senior Civil Judge, Nellore, dated 25th October, 2005.

(2.) Appellant herein petitioner-plaintiff filed the aforesaid application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) praying for restoration of the suit which was dismissed for want of representation on 1-8-2005. Respondent- defendant resisted the application and the learned Judge, after recording certain reasons, arrived at a conclusion that there are no grounds to allow the application and accordingly dismissed the said application. Aggrieved by the same, the present civil miscellaneous appeal is preferred.

(3.) Smt. Ramani Jonna, learned Counsel representing the appellant-plaintiff made the following submissions: The learned Counsel would contend that the dismissal of the application on the ground that the affidavit of the plaintiff was not filed in support of the application cannot be sustained for the reason that the advocate on record who had sworn to the affidavit had knowledge about the facts to be sworn in the said affidavit and hence the non-filing of affidavit of the plaintiff in support of the application cannot be made a ground to dismiss the said application. The learned Counsel also had placed respective pleadings of the parties before this Court and had pointed out to the averments made in Paragraphs 2, 3, 4 and 5 of the written statement and would contend that the execution of promissory note in question in favour of K. Chandrasekhara Reddy is not in serious dispute and the fact that the appellant-plaintiff as holder in due course on the strength of the transfer made by K. Chandrasekhar Reddy had instituted the suit also is not in serious dispute. In the light of such admissions made even if there is some negligence on the part of the Counsel representing the plaintiff or the plaintiff, as the case may be, instead of dismissing the suit as such at least a decree could have been passed on the strength of such admissions in the light of Order IX Rule 9 of the Code. The learned Counsel placed strong reliance on the decision of this Court in G. Satyanarayana v. M. Shankar, 2001 (1) ALD 317 = 2001 (1) ALT 365 and also the decision of the Apex Court in Calcutta Port Trust v. Shalimar Tar Products Ltd., AIR 1991 SC 684.