KOTHARI AND COMPANY Vs. RAJAN AND COMPANY

JUDGEMENT

(1.) THE revision petitioner is the plaintiff before the trial Court in O. S. No. 9315 of 1996 on the file of the learned First Assistant City Civil Judge, Chennai. The respondents 1 to 3 herein are the defendants in the suit. Though the notice was served to the respondents 1 to 3, they have neither appeared in person nor through the counsel.

(2.) THE revision petitioner/plaintiff laid a suit for recovery of a sum of Rs. 72,968/- from the respondents with interest of Rs. 79,346/- totalling to Rs. 1,52,314/- together with 30% interest from the date of filing of the suit till the date of realisation. It transpires that the suit was listed for trial on 11. 01. 2000 and there was no representation on the side of the plaintiff either by the counsel or through somebody and resultantly, the suit was dismissed for default. It is represented on behalf of the petitioner herein that the power agent of the plaintiff company Mr. H. Subramanian was not in station on 11. 01. 2000, when the suit was listed for trial and that he could not contact his counsel and that his counsel was held up in the High Court on 11. 01. 2000 and therefore, none represented the matter on behalf of the plaintiff and resultantly, the suit was dismissed. It is further the case of the revision petitioner that the clerk of the plaintiff's counsel who was attending the matter fell sick and he did not attend the court and that the suit papers were in his custody who later died. Hence, there is delay of 366 days in setting aside the order of dismissal of the suit dated 11. 01. 2000.

(3.) THE lower court had dismissed I. A. No. 10305 of 2001 with cost on the ground that no sufficient reason was assigned to condone the delay in the petition. The trial Court in its order on 15. 11. 2002 in the said Interlocutory Application has observed that the affidavit filed on the side of the plaintiff/petitioner in I. A. No. 10305 of 2001 clearly showed the gross negligence of the revision petitioner/plaintiff and his counsel and that the revision petitioner/plaintiff has come forward with false reasons. In the lower Court in the counter filed to the said interlocutory application by the respondents/defendants, it is averred that the petition for condoning the delay is not maintainable and the same is hopelessly barred by limitation and therefore, prayed for dismissal of the said application.