Mangalipally Ramulu, v. State Bank Of India,

THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO AND THE HONOURABLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.4441 of 2019 ORDER: (Per Hon'ble Sri Justice M.S. Ramachandra Rao) This Writ Petition is filed assailing the docket order dt.21-01-2019 in S.A.No.50 of 2014 of the Debts Recovery Tribunal-I at Hyderabad dismissing the said S.A. for non-prosecution. 2.

It is important to note that M.A.No.104 of 2018 was filed by petitioner on the very same day on which S.A. was dismissed for default without any delay.

3.

In the affidavit filed in support of M.A.No.104 of 2018, it was stated that the party had represented the matter along with a Junior counsel seeking adjournment with an application, but the Court had dismissed the S.A. for non-prosecution on 16-04-2018; after lunch recess, the party and counsel intended to make a mention but they were advised to file a petition for restoration; and therefore the application was moved; but by docket order dt.21-01-2019, the Tribunal returned the same referring to earlier adjournments wherein the petitioner was not ready to present the arguments. 4.

Learned counsel for petitioner contends that "sufficient cause" referred to in Order IX Rule 13 C.P.C. refers to date on which absence was made ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time and previous negligence or in action of the petitioner cannot be taken into

account. Reliance is placed on the judgment of the Supreme Court in G.P. Srivastava Vs. R.K. Raizada and others1. 5.

This legal position is not disputed by the learned counsel for respondent.

6.

Since application in M.A.No.104 of 2018 seeking restoration was filed on the same day on which the Tribunal had dismissed S.A.No.50 of 2014, the Tribunal ought to have allowed it, fixed a date for hearing, heard the matter and decided on merits. Since the entire order is based on the earlier adjournments sought by petitioner, the impugned order is set aside and M.A.No.104 of 2018 is allowed; the Debts Recovery Tribunal-I at Hyderabad is directed to give one opportunity to the petitioner to contest S.A.No.50 of 2014 by also giving notice to the auction purchaser; and if the petitioner does not cooperate and address arguments in the S.A. on the day fixed by it, this Writ Petition shall stand dismissed and petitioner shall not be permitted to avail the benefit of this order. 7.

The Writ Petition is allowed with the above directions. No costs.

8.

As a sequel, miscellaneous petitions pending if any in these Revisions, shall stand closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO _______________________ JUSTICE K. LAKSHMAN Date: 28-10-2019 Vsv 1 (2000) 3 SCC 54