GADIRAJU VIDYULATHA Vs. INDIA VENKATESWARLU

JUDGEMENT

(1.) Respondent filed the suit for recovery of amount covered by the suit promissory note, which was dismissed for default on 2-5-2000. Subsequently, respondent filed a petition under Order 9 Rule 9 C.P.C. to restore the suit with a petition to condone delay of 389 days, with the affidavit sworn to by the counsel for the respondent in the trial Court, explaining the reasons for the delay. The Court below accepted the explanation and condoned the delay. Hence this revision by the defendant.

(2.) In the affidavit sworn to by the counsel for respondent in the trial Court he stated that his clerk wrongly noted the suit number as 8 of 2000 instead of 7 of 2000 and so he was following proceedings as recorded in the B-diary of the court in respect of O.S.No.8 of 2000, and only when the respondent approached him, after proper verification, he came to know that the suit number was wrongly noted and that the suit of respondent was dismissed for default for non-representation, and since the lapse was on his part but not on the part of the respondent the delay occurred in filing the petition for restoration may be condoned.

(3.) The main contention of the learned counsel for the revision petitioner is that since this Court deprecated the practice of counsel for parties swearing to affidavits filed in support of applications in Pasupuleti Subba Rao v. Nandavarapu Anjaneyulu the Court below ought not to have acted on the affidavit of the counsel for the respondent in 1. 2003 (3) ALT 816. the trial Court and should have insisted on the respondent filing his affidavit in support of the application. It is his contention that since respondent did not swear to an affidavit explaining the reasons for the delay it has to be taken that respondent was not diligent in prosecuting his case and so the order under revision is not sustainable. The contention of the learned counsel for the respondent is that since the delay in filing the petitioner for restoration is explained in the affidavit filed in support of the application, the court below did not commit any error in condoning the delay and so there are no grounds to interfere with the order under revision.