P RANJITH KUMAR REDDY Vs. S SATYANARAYANA RAJU

JUDGEMENT

(1.) THE petitioner filed O. S. No. 106 of 2003, in the Court of iii Additional Senior Civil Judge, Warangal, against the respondent, for recovery of certain amount. The suit was dismissed for default on 19. 4. 2005. Thereupon, the petitioner filed an application under Order IX Rule 9 C. P. C. , with a prayer to restore the suit. Since there was delay of 139 days, he filed i. A. No. 28 of 2006, under Section 5 of the Limitation Act. Through its order, dated 13. 4. 2007, the trial court allowed the I. A. No. 28 of 2006, on condition that the petitioner pays a sum of Rs. 1,000/- as costs, on or before 17. 4. 2007 and files affidavit in lieu of chief-examination. Default clause was also added. The petitioner states that the amount of costs was deposited within time, and that he was advised to wait till the application under Order IX Rule 9 CPC is disposed of, in the context of filing affidavit, in lieu of chief-examination. The matter was called on 23. 4. 2007, and the trial court dismissed I. A. No. 28 of 2006, on the ground that the affidavit, in lieu of chief-examination of PW-1, was not filed. Hence, this CRP.

(2.) SRI C. A. R. Seshagiri Rao, learned counsel for the petitioner, submits that though the trial court imposed a condition, while allowing I. A. No. 28 of 2006, that an affidavit, in lieu of chief-examination of PW-1, must be filed, the occasion to file the same arises, only when the suit is restored to file. He submits that while a specific date was stipulated for payment of costs, no such date was fixed for filing of the affidavit, and in that view of the matter, the trial court ought not to have dismissed the I. A. , filed under Section 5 of the limitation Act. Though the respondent was served with notice, he has not chosen to enter appearance.

(3.) ON the dismissal of the suit for default, the petitioner filed an application, under Order IX Rule 9 C. P. C, and another under Section 5 of the Limitation Act. The application under Section 5 of the Limitation Act, being I. A. No. 28 of 2006, was allowed with the following conditions: