G.KRISHNA MOHAN REDDY C.M.A No. 968 of 2004 · Andhra Pradesh High Court

The Civil Miscellaneous Appeal is directed against order passed in I.A.No.1433 of 2002 filed under Order 9 Rule 9 CPC r/w Section 151 C.P.C. in O.S.No.49 of 2000 dated 23.01.2004 on the file of the II Additional District Judge, Vijayawada, dismissing the interlocutory application. The appellant is the petitioner and the respondents are the respondents in the said interlocutory application. For

convenience sake, the parties will be referred to as they are arrayed in the interlocutory application. The facts of the case are as follows: The suit was filed by the petitioner for partition and separate possession of respective shares against the respondents. On

20.02.2002 the suit was dismissed for default on the ground that the petitioner failed to attend the Court and prosecute the matter. Later, the petitioner filed the interlocutory application on the ground that she was held up in the house of her daughter at California, USA and hence she could not attend the Court on 20.02.2002 to prosecute her case and she did not commit any mistake and there were no latches on her part and hence the impugned order may be set aside. On behalf of the respondents, counter was filed denying the pleas taken by the petitioner and putting the petitioner to establish the same. The lower Court dismissed the application on the ground that the matter underwent number of adjournments for recording evidence and finally the matter was posted to 21.12.2001 from 06.12.2001 for the same purpose and in fact from then onwards the suit underwent two more adjournments and on 31.01.2002 the petitioner was called absent and was set ex parte as no representation was made on her behalf and then the matter was posted to 20.02.2002, on which date the suit was dismissed for default.

Against that order, before the Court on 14.3.2002 she filed the interlocutory application seeking to set aside the dismissal order dated 20.02.2002 giving proper reasons. But the same was dismissed by the Court below. Hence, the present appeal has been preferred. The point for determination is whether sufficient reasons are given in order to allow the interlocutory application to set aside the order of dismissal and allow the interlocutory application and the order passed by the lower Court is tenable. POINT: It is significant to note that the petitioner filed the suit for partition and also allotment of her share in the plaint schedule properties and further it is also significant to note that according to her as she was held up in California, USA she could not attend before the Court when the matter was called. But she did not file any documentary proof in support of her claim. However, in view of the circumstances of the case, it can be accepted that due to such reason only she failed to attend before the Court to proceed with the trial of the suit.