K CHINNASAMY GOUNDER Vs. K A PALANISAMY GOUNDER

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order dated 08.08.1997 in I.A.No.464 of 1996 in O.S.No.623 of 1985 passed by Second Additional District Munsif, Coimbatore, dismissing the Petition to condone the delay in representation.

(2.) BRIEF facts are as follows:- The First Revision Petitioner / Plaintiff has filed O.S.No.623 of 1985 on the file of Second Additional District Munsif Court, Coimbatore for Partition and Separate Possession. For non appearance of the Plaintiff, the Suit was dismissed on 14.08.1995. The Plaintiff has filed an Application under O.9 R.9 C.P.C for restoration of the suit on 25.09.1995. Since there was delay of 11 days in filing the Application for restoration of the Suit, the Plaintiff has filed Application under Sec.5 of the Limitation Act to condone the delay of 11 days in filing that Application. Applications filed under O.9 R.9 C.P.C and Sec.5 of the Limitation Act were returned for rectification of certain defects. The Applications were not represented within the stipulated time, but were represented with a delay of 93 days. The Plaintiff has filed I.A.No.464 of 1996 to condone the delay of 93 days in representing the Application for restoration of the Suit. The lower Court declined to condone the delay in representation on the ground that the delay has not been satisfactorily explained.

(3.) I have carefully examined the records and considered the submissions. The Applications under O.9 R.9 C.P.C and Section 5 of the Limitation Act were represented with a delay of 93 days. According to the Plaintiff, the reason for the delay is that the Applications and other connected papers got mixed up with the other case bundles in the Advocate's Office and could not be traced and represented in time and the delay is bonafide. The Trial Court rejected the reason given for the delay in representation on the ground that neither the counsel nor Advocate's clerk has filed the Affidavit to substantiate the plea of mixing up with other case bundles. In order to explain the delay i.e., mixing up with other case bundles and papers not traceable it would have been desirable if either Advocate or Advocate's Clerk have sworn in affidavit. But, on the ground of non-filing of Affidavit either by Advocate or Advocate's Clerk, the party cannot be made to suffer. More often it happens either due to the mistake on the part of the Advocate or Advocate's Clerk. There is delay in representation of the case papers. In cases of undue delay, the Court has to scrutinise the reason for the delay with care and circumspection. In normal course where sufficient cause is shown for the delay, the Court may condone the delay in representation.