S MAHALINGAM Vs. NEDUNGADI BANK LIMITED

JUDGEMENT

(1.) THIS civil revision is directed against the order passed in LA. No.199 of 1987 in an unnumbered plaint, by the Principal Subordinate Judge, Madurai. Defendants 3 to 6 in the un-numbered plaint are the petitioners herein. The plaintiff filed a suit against the defendants to recover a sum of Rs.47,493.65 with interest at the rate of 20 per cent per annum. The plaintiff is Nedungadi Bank Limited, Madurai. The plaint was returned due to certain defects as pointed out by the office of the court of the Principal Sub Judge, Madurai. The plaint could not be re-presented within the time stipulated. There was a delay of 633 days in re-presenting the plaint. The matter came up by way of check slip before the Principal Sub Judge, Madurai. The advocate appearing for the plaintiff filed an affidavit stating that the plaint was returned and return was taken. In his office the plaint and other connected papers got mixed up with other papers. When the papers relating to one Periyathambi Velar were returned to him, the plaint in the present case as well as the connected papers were also inadvertently returned along with the papers belonging to the said Periyathambi Velar. A day prior to the filing of the petition for condonation of delay, the said Periyathambi Velar brought back the plaint in the present case and other papers and handed over the same to the counsel for the plaintiff by stating that the plaint and other papers belonging to the Nedungadi Bank were given along with his papers and he was able to find out the same only now and therefore he is returning the papers relating to the Nedungadi Bank to the counsel for the plaintiff. The said Periyathambi Velar also filed an affidavit to the abovesaid effect. The lower court issued notice to the defendants in the plaint. The 6th respondent filed a counter which was adopted by respondents 3 to 5. In the counter, it is stated that on prior occasions the plaint was returned because of deficit court-fee on several occasions. The deficit court-fee was paid on 13.7.1985. Thereafter the plaint was returned in order to comply with the other defects pointed out by the office.The reasons given by the plaintiff for the delay of 633 days in re-presenting the plaint are not acceptable. There is no truth in the averment that the plaint was given to one Periyathambi Velar, while papers belonging to him were returned to him. Simply because the advocate has filed an affidavit, it cannot be said that there is sufficient cause for the condonation of delay. It was, therefore, pleaded that the delay should not be condoned. However, the trial court, on considering the facts arising in this case and the affidavit filed by the learned counsel appearing for the plaintiff, condoned the delay in representing the plaintiff and directed the office to number the same if it is otherwise in order. It is against that order, the present civil revision has been filed by the defendants 3 to 6.

(2.) THE learned counsel appearing for the petitioners herein defendants 3 to 6, submitted that in view of the notice issued to the defendants in the plaint, they appeared before the lower court. THEy filed their counter and opposed the petition filed for condonation of delay in representation. THE plaint was filed with a court-fee of Rs. 100. THE deficit court-fee paid on 13.7.1985. For payment of deficit court-fee, the plaint was returned on several occasions. When there was delay in payment of deficit court-fee, the plaintiff ought to have approached the court with an application to condone the delay. THE court also should have applied its mind in condoning the delay in payment of deficit court-fee. No order was passed by the lower court in condoning the delay in payment of deficit court-fee. THEre is no truth in the statement that the present plaint was given along with the papers belonging to one Periyathambi Velar. This is a cause invented by the plaintiff only for the purpose of convincing the court to condone the delay in representation. Without sufficient cause, the delay cannot be condoned. It was, therefore, pleased that the court below ought to have refused to condone the delay and rejected the plaint.

(3.) I have heard the rival submissions. The fact remains that the plaint filed by the plaintiff was returned. It could not be re-presented in time. There was adelay of 633 days in re-presentation. The lower court ordered notice to the defendants before numbering the plaint. According to the plaintiff the delay occurred since the plaint got mixed up with papers, which were delivered to one of the clients of the advocate for the plaintiff. When the person, who took away the plaint returned the same to the advocate for the plaintiff, the same was re-presented immediately with a petition to condone the delay in re-presentation. The advocate for the plaintiff filed an affidavit for the condonation of the delay. The person who is said to have taken away the plaint along with his papers also filed an affidavit reiterating the same facts. The plaint was returned on several occasions, for payment of deficit court-fee. Ultimately the deficit court-fee was paid on 13.7.1985. Thereafter the plaint was returned for certain other defects and therefore the delay in payment of deficit court-fee is not the subject-matter in the order passed in I.A. No.199 of 1987. The delay occurred after the payment of deficit court-fee alone was the subject-matter before the trial court. The lower court accepted the reasons given by the plaintiff for the delay in representation.