THE HON'BLE SRI JUSTICE NINALA JAYA SURYA CIVIL REVISION PETITION Nos.2715 of 2019 & 2690 of 2019 COMMON ORDER:

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The petitioner who is the plaintiff in O.S.No.300 of 2016 on the file of the Court of Additional Senior Civil Judge, Kadapa, aggrieved by the order dated 11.06.2019, passed in I.A.Nos.794 of 2018 and 795 of 2018, filed the present Civil Revision Petitions. The petitioner filed I.A.No.794 of 2018, seeking condonation of delay of 532 days, in filing an application to set aside the order of dismissal of the suit dated 08.11.2016, and a separate application I.A.No.795 of 2018 to restore the suit to the file.

In support of the said applications, the petitioner filed an affidavit stating inter-alia that he failed to appear before the Court when the matter was listed due to viral fever and that subsequently his counsel misplaced the file while shifting of office and that there is no negligence on his part and sought for restoration of the suit by condoning the delay.

The respondent/defendant filed counter contending inter-alia that the petitioner failed to explain the delay of each day in filing the petition for restoration, to cover up the lacuna in the cross examination pertaining to cheque bounce case in C.C.No.493 of 2006 on the file of the Court of III Additional Junior Civil Judge, Kadapa, between the same parties, the application has been filed.

The Trial Court after considering the rival contentions, dismissed both the I.As., preferred by the petitioner/plaintiff. Aggrieved by the said orders in I.A.Nos.794 of 2018 and 795 of 2018, the petitioner preferred the present C.R.Ps i.e., C.R.P.Nos.2715 of 2019 and 2690 of 2019 respectively.

Heard the learned counsel for the petitioner and the respondent.

The counsel for the petitioner submits that the order of the Trial Court in dismissing the applications amounts to failure of discretion vested in it and that the Trial Court ought to have allowed the applications, more particularly in a suit for realization of money. He further contended that even if the suit is restored, the same would not effect the defendant in any manner, since the petitioner would have to establish its case by placing cogent material to substantiate his claim. He further submitted that by virtue of the dismissal of the suit for nonprosecution, the petitioner/plaintiff had lost the valuable right to recover the amount from the respondent/defendant and prays for setting aside the order passed by the Trial Court.

The learned counsel for the respondent on the other hand submits that the petitioner/plaintiff has not acted with due diligence and not filed any material to substantiate the reason for non-representation of the case on the date it was posted, no material was placed to substantiate reasons for the delay in filing the petition by explaining the day to day delay, and only with a view to cover up the lacuna in the cheque bounce case vide C.C.493 of 2006, the petitioner filed I.As., before the Trial Court. He further submits that the dismissal of I.As., before the Trial Court is based on valid and cogent reasons and that the same deserves no interference of this Court and prayed for dismissal of the C.R.P.

Now the point for consideration against the background of the rival contentions is:

Whether the order passed by the Trial Court warrants any interference by this Court in exercise of its power under Article 227 of the Constitution of India?

As contended by the learned counsel for the petitioner, the Trial Court ought to have appreciated that the suit is filed for realization of money and if the applications seeking restoration by condoning the delay are allowed, no prejudice would be caused to the respondent/defendant. Though it would appear that the

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petitioner/plaintiff had not acted with due diligence with which it is required, since it is a matter for recovery of money and the petitioner/plaintiff has to establish its case by placing cogent material, this Court is of the opinion that in the interest of justice, it would be appropriate to give an opportunity to the petitioner/plaintiff to contest the matter/suit, by imposing certain terms.

Accordingly, the order passed in I.A.No.794 of 2018 is set aside. The application seeking condonation of delay to set aside the order of dismissal of the suit is allowed, subject to payment of costs of Rs.10,000/- payable to the defendant/respondent, within a period of three weeks from the date of receipt of copy of this Order. On filing of proof of costs, the suit shall be restored to file. Consequent to allowing of I.A.No.794 of 2018, I.A.No.795 of 2018 also stands allowed. It is made clear that the plaintiff on restoration of the suit subject to the payment of costs shall proceed with the matter without seeking adjournments, except for genuine reasons.

Accordingly, the Civil Revision Petitions are allowed. There shall be no order as to costs.

Consequently, miscellaneous petitions, if any, pending in these Civil Revision Petitions, shall stand closed.

________________________ NINALA JAYASURYA, J

19th Day of March, 2020. BLV

THE HON'BLE SRI JUSTICE NINALA JAYASURYA

C.R.P.Nos. 2690 of 2019 AND 2715 of 2019

19.03.202020

BLV