INTEGRAL COMPUTERS LTD Vs. BBS ELECTRONICS PVT LTD

JUDGEMENT

(1.) THE petitioner is aggrieved by an order of the learned ADJ whereby he allowed an application under Order 9 Rule 9 CPC and another application under Section 5 of Limitation Act and restored the suit of the plaintiff that was dismissed in default.

(2.) THE plaintiff/respondent had filed the suit for recovery of money against the petitioner alleging that certain goods were supplied by the respondent to the petitioner and money was due against the delivery of the goods. This suit was dismissed only on the ground that the petitioner could not prove issue no. 1 which was to the effect whether the suit was filed by the person authorized to do so. The petitioner preferred an RFA No. 676/2008 along with an application under Order 41 Rule 27 for leading additional evidence. This appeal of the petitioner was allowed vide order dated 28th May, 2007 and the judgment/decree of trial Court was set aside. The matter was remitted back to the Trial Court and the Trial Court was directed to give an opportunity to the plaintiff to lead evidence and thereafter to the defendant to lead evidence and then decide the suit on merits.

(3.) AFTER the matter was remanded back to the Trial Court, the file reached before the District Court on 18th July, 2007 when none appeared for the plaintiff. The matter was transferred to the Court of Sh. Sunil Kumar Aggarwal, adj from Sh. D. C. Anand, ADJ on same day. Mr. Sunil Kumar Aggarwal, ADJ took up the matter at 2. 00 pm. None had appeared for the plaintiff on that date. The learned ADJ posted the matter for 6th August, 2008 when none appeared for the plaintiff. He dismissed the suit in default. An application under Order 9 Rule 9 CPC was made by the plaintiff accompanied by an application under Section 5 of limitation Act for condonation of delay. There was delay of about 30 days in filing the application. The reasons for delay were given by the petitioner and the Trial Court considered that the application of the plaintiff was accompanied by an affidavit of counsel for the plaintiff in support of the reasons and the affidavit need to be given due weightage. The delay in filing application and the reasons for absence of the plaintiff were sufficiently explained. The plaintiff had not intentionally abstained from the proceedings and he therefore condoned the delay and allowed the application, subject to costs of Rs. 500/ -.