T. Bhanumathi vs R. Hanumantha Rao (died) and Others

A. Gopal Rao, J.—Defendant is the petitioner. The suit filed by the plaintiffs-respondents for injunction was dismissed for default. I.A. No. 256/95 filed by the respondents for restoration of the suit was allowed by the lower Court. Aggrieved by the same, the present CRP is filed.

The learned Counsel for the petitioner contends that the lower Court having found that the respondent has not satisfactorily explained the Cause for his absence on the day when the suit was dismissed for default, erred in allowing the I.A. on extraneous reasons. The reason given by the respondent in the I.A. (I.A.256/95) for his absence on the day when the suit was posted for trial was that due to failure of the bus in which he was travelling, he could not attend the Court. The lower Court rejected this plea on the ground that the respondent has not produced the bus-ticket or let in any evidence to establish that the respondent was travelling in the bus and the bus failed. So saying, the lower Court categorically found as follows:

"Thus, viewing from any angle the reasons assigned by the petitioner-plaintiff in the petition affidavit are not at all satisfactory and they are not at all sufficient to attract the ingredients of Order 9 Rule 9 CPC."

Having thus found, the lower Court ought to have rejected the application. Instead, the lower Court allowed the I.A. in the following terms:

"It is however thought just and reasonable to give more chance to the petitioner-plaintiff to proceed with the trial of suit, but on heavy terms in order to check the recalcitrant attitude of the petitioner-plaintiff in not attending the Court for the trial of the suit of 1988. In the result, the petition shall be allowed on depositing of Rs.500/- on or before 28-7-95, failing which this petition shall stand dismissed."

It is now well settled that when once the lower Court found that the cause for the absence of the petitioner-plaintiff has not been established, the Court has no jurisdiction to allow the application overriding the express provision in the Code of Civil Procedure. This point has been decided in a catena of decisions, e.g., K. Suryaprakasa Rao v. V. Satyanarayana 1970 (l)APLJ 111; Fotolite Colour Labs Vs. Aver Foto Print System and Others, ; The Managing Director, APSRTC Vs. Laghshetty Leelavathi and Others, ; Malti Devi v. Hon''ble Board of Revenue, U.P. AIR 1995 All 27, etc. Following these decisions, I hold that the lower Court having found that the respondent has not established that on account of failure of the bus in which he was travelling he could not attend the Court, erred in allowing the petition. This revision petition is therefore allowed and the order impugned is set aside. No costs.

It is open to the respondent to pursue his remedies, if any, in accordance with law.