BENZ AUTOMOBILES PRIVATE LTD. Vs. ABDULLLA

JUDGEMENT

(1.) The appellant is the plaintiff in the Original Suit as well as the appellant in the First Appeal. The Original Suit was one for recovery of money. According to the plaintiff, an amount of Rs.36,666.56 was due from the defendant to the plaintiff company. The defendant has filed a written statement contending that the claim was barred by limitation. However, the suit was listed for trial to the first day of Sept., 1999. When the case has come up for trial, the plaintiff filed I.A. No.3487/1999 seeking replacement of the original Power-of-Attorney Holder by a new Power-of-Attorney Holder. Besides, the plaintiff has filed two other Interlocutory Applications. One to call for some records of a criminal case from a criminal court and another was to amend the plaint. Since those applications were highly belated and the plaintiff has not given prior notice to the other side, the trial court dismissed all the Interlocutory Applications and dismissed the Suit for default.

(2.) Feeling aggrieved, the plaintiff preferred an appeal before the lower appellate court. After considering the entire circumstances, under which the plaintiff was constrained to file the aforesaid Interlocutory Applications, the court below arrived at a finding that even though the delay in taking steps and filing the applications is not justifiable, taking a lenient view, the appeal will stand allowed on payment of Rs.5,000.00 as cost before 11.06.2001, failing which the appeal will stand dismissed with cost. The plaintiff has not remitted the cost within the specified time. Consequently, the appeal was dismissed. The legality and correctness of the findings, whereby the original suit and the appeal stand dismissed, are under challenge in this Second Appeal.

(3.) The questions to be considered in this appeal are the following:-