C E NAGARATHNAMMA Vs. ABDUL GAFOOR SAB

JUDGEMENT

(1.) P.Misc.No. 131/85 before the trial Court of the Civil Judge at Shimoga came to be dismissed for default on 19-9-1987 and that was an application for permission to sue as an indigent person filed by the present appellant. On 9-12-1987 she filed an application in Misc. case No.131/85 before the same Court for setting aside the order of dismissal under order IX Rule 9 C.P.C. Obviously this was beyond the period of 30 days fixed for filing such application under Order IX, Rule 9 CPC. Along with that an Inter locutory application also came to be filed under Section 5 of the Limitation Act to condone the delay in Tiling the said application.

(2.) In support of this application in the affidavit two grounds were stated as constituting sufficient cause for condonation of delay. In the first instance the applicant stated that she came to know about the order on 21-9-1987. Her counsel advised to obtain certified copies of the order. She applied for the same and copies were obtained on 21-11-1987. Immediately thereafter this petition came to be filed. As far as the cause for not being present on the date of hearing she made an averment in the application that she was ailing with heart trouble, she could not attend the Court and the adjournment sought for by her counsel was rejected. This is how she was prevented from being present in Court on the date of hearing.

(3.) the trial Court in the first instance held the provisions of Section 12 of the Limitation Act are not applicable inasmuch as no certified copy of the order was required to be filed along with the application under Order IX, Rule 9 CPC. It observed that sub-section (2) applies only for an appeal or an application for leave to appeal or for revision or for review of a Judgment and hence Section 12 is out of question. When this was so it disposed of the Inter locutory application holding that when the same is the ground invoking Section 5 of the Limitation Act, it cannot be considered as a sufficient cause to condone the delay. In its opinion it was only to otherwise circumvent the provision of law which was not applicable. Having so rejected the application under Section 5 of the Limitation Act, it dismissed the petition itself as barred by time. It is this order that is now challenged in this appeal.