AYYAMMAL Vs. VELLAPPA GOUNDER

JUDGEMENT

(1.) THIS revision petition is directed against the order, condoning the delay of in seeking to set aside the order of dismissal for default made in a suit.

(2.) THE respondent/petitioner filed O.S.No.35 of 1984 for bare injunction. It was posted list for trial on 15.9.1989. As the respondent did not appear, it was dismissed for default. application was filed on 27.1.1990 to set aside the order of dismissal along application to condone the delay of 104 days in filing the same. In the affidavit support of the application, the reason for the delay is given as follows: "I submit that in the month of June, I met an accident and my leg was broken and admitted in the hospital and I was advised to take rest in bed for further six months. was not in a position to meet my advocate to give proper instructions." THE affidavit does not set out the year or the date, but it merely states that in respondent is said to have met with an accident. THE only claim in the affidavit is that his was broken. This is denied in the counter statement filed in the trial court by the petitioner herein. In the course of evidence, the respondent produced a medical certificate dated 1.7.1989 and two X-ray films, which are marked as Exs.A-2 and A-3. THE medical practitioner who claims to have treated the respondent was examined as P.W.2, who in his evidence states that the respondent met with an accident in August, 1988 and that the X films taken on 29.8 1988 disclose a fracture of the bone in the hip. According to P.W.2, was in the hospital for two months and he was advised to take rest for six months thereafter.

(3.) THE court below was obviously carried away by sympathy. It had overlooked provisions O.9, Rule 9, C.P.C. Under the rule, the court should be satisfied that there sufficient cause for non appearance of the plaintiff when the suit was called for hearing. this case, the question of satisfaction of the court as to what was sufficient cause arise, as no cause was mentioned by the respondent for his non-appearance in September, 1989. THE evidence adduced by him would not take him beyond April, 1989. Even that maximum indulgence could be given to him on the basis of such evidence, there reason as to why the respondent did not attend the court in September, 1989. circumstances, the court below is in error in condoning the delay, without ascertaining whether there was sufficient cause for the non-appearance of the respondent on the trial. Learned counsel for the respondent relied on the decision in Mathi Ammal v.Ajjan another, (1975)2 M.L.J. 384, wherein, this court held as under: 'sufficient cause" in Sec.5 of the Limitation Act should receive a liberal construction advance substantial justice where no negligence or inaction or want of bona fide is imputable to the appellant."