THOMAS Vs. KARUTHAN

JUDGEMENT

(1.) THIS Civil Revision Petition is filed against the fair and decretal order dated 16. 9. 2004 made in i. A. No. 2138 of 2004 in unnumbered Original Suit by the file of the learned principal District Munsif , Kallakurich i allowing the said I.A. , filed by the plaintiff, respondent herein under Section 5 of the Limitation Act to condone the delay of 2017 days in re-presenting the plaint.

(2.) THE respondent herein presented the plaint against the revision petitioner for recovery of a sum of Rs. 12 ,700 /= with future interest. He also filed I. A. No:2138 of 2004 along with the Plaint to condone the delay of 2017 days in re-presenting the plaint. THE plaintiff/respondent contended that on the earlier occasion, the plaint was returned on 14. 12. 1998 to comply with the defects noted there under within seven days thereafter, but due to the shifting of the residence of his counsel, the plaint papers got misplaced and could not be traced and only recently the same was found and therefore such a huge delay of 2017 days has occurred.

(3.) LEARNED counsel for the revision petitioner/defendant contended that while taking out the Section 5 petition to condone the delay of 2017 days the plaintiff has not even filed any affidavit and only the Advocate clerk has sworn to the affidavit which is not sufficient to grant the relief. Further, in his evidence P. W. 2 had clearly stated that the counsel shifted his office premises just prior to his giving evidence which is contradictory to the pleading in the affidavit. Further, the delay of more than six years to trace a bundle which is alleged to be mixed up with old case papers is not believable and even if each bundle in the counsel's office had been checked one by one it would not have taken several years. Further, there is no documentary proof for such shifting of the counsel's office from one place to another place. This is bolstered by the fact that the notice issued subsequent to the proceedings to the respondent's counsel was received by him in the same old address. LEARNED counsel for the revision petitioner contended that in such circumstances, the trial court ought to have refrained from showing indulgence to the plaintiff.