VEERABHADRAPPA Vs. CHAIRMAN VYVASAYA SEVA SAHAKARI SANGH GALAGALI

JUDGEMENT

(1.) THE petitioners, being aggrieved by the order dated 28-2-2004, passed in Misc. Appeal No. 13/1998, by the principal Civil Judge (Sr. Dn.), Jamkhandi, dismissing the appeal and confirming the order dated 3-4-1998, passed in Civil Misc. No. 10/1994, by the Civil Judge (Jr. Dn.), bilagi, and allow the revision petition by restoring O. S. No. 9/1993 on its file and permit the plaintiffs/petitioners to adduce further evidence in the interest of justice and equity, have presented the instant Civil Revision Petition.

(2.) THE grievance of the petitioners herein-plaintiffs in the instant civil Revision petition is that, petitioners have filed a petition under Order 9, Rule 9 of CPC praying to set aside the order dated 10-2-1994 passed in o. S. No. 9/1993 stating that, the said suit was dismissed for non-prosecution and prayed for restoration of the said suit in the interest of justice and equity and sought permission to proceed with the said suit by restoring the same on its original file in civil Misc. No. 10/1994 before the Civil judge (Jr. Dn.), Bilagi. Along with the said petition, petitioners have filed an application under Section 5 of Limitation Act, for condonation of delay of 36 days in filing the said petition. The said application had come up for consideration before the Trial Court on 3rd April 1998. The Trial Court, after considering the averments made in the affidavit filed along with the petition, objections filed by respondents herein and the pleadings of the parties and after considering the oral evidence of PW. l and the documentary evidence at Exs. Pl and P2, has raised the points for consideration which reads thus :

(3.) THE only valid reasons given by the Trial Court for dismissing the application filed by petitioners for condonation of delay is that, there is inconsistency in the evidence adduced by first petitioner and he has not produced any documentary evidence to substantiate the statement made in the affidavit for condoning the delay in filing the application for recalling the order of dismissal of the suit for non-prosecution in para-13 of the order and consequently dismissed the Civil misc. 10/1994. Assailing the correctness of the order passed by the trial Court dated 3rd April 1998, petitioners herein have filed Miscellaneous Appeal before the Principal civil Judge (Sr. Dn.) Jamkhandi in No. 13/1998. The said Miscellaneous appeal had come up for consideration before the lower Appellate Court on 28th February 2004. The Lower Appellate Court, after hearing the learned Counsel appearing for both the parties and after going through the order passed by the Trial Court has raised three points for its consideration which reads thus: