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2002 DIGILAW 1 (KAR)

G. K. BALAKRISHNA v. H. VENKATARAMANAPPA

2002-01-01

D.V.SHYLENDRA KUMAR

body2002
D. V SHYLENDRA KUMAR, J. ( 1 ) THIS civil revision petition is directed against the order dated 18-12-1999 passed in Civil Miscellaneous Case No. 3 of 1998 on the file of the court of the Civil Judge (Junior Division), Siraguppa dismissing the said civil miscellaneous case. ( 2 ) THE petitioner in this civil revision petition as well as in Civil miscellaneous Case No. 3 of 1998 was the plaintiff in Original Suit No. 46 of 1994 on the file of the same Court. The suit was for specific performance of an agreement dated 29-12-1988 which the plaintiff claims as an agreement for conveying certain extent of agricultural properties by the defendants in favour of the plaintiff. ( 3 ) THE plaintiff had filed the suit for specific performance of the said agreement and the suit had been set down for letting of evidence of the plaintiff on 23-10-1997 and the suit came to be dismissed for non-prosecution as the petitioner was not represented before the Court. Later on a miscellaneous application came to be filed as Miscellaneous Case No. 3 of 1998 on 13-1-1998. There was delay of 80 days in filing the said application and the said application was vehemently opposed by the defendants by filing the objection. The miscellaneous case was taken up for letting in of evidence of the parties and the plaintiff who was the applicant in the miscellaneous case was examined himself. ( 4 ) THE case of the plaintiff-petitioner was that he was suffering from malaria and as such could not attend the Court, particularly on the date when the case had been set down for evidence. The plaintiff had deposed that he had been admitted to Hospital on 29-9-1997 in connection with such illness and was an in-patient for 3 days and he was advised bed rest for 45 days. The further evidence was that due to the said illness the plaintiff could neither contact his Advocate nor attend the Court on 23-10-1997 and subsequently on 13-11-1997 he met with an accident wherein his hand got fractured and he had to undergo further treatment which further delayed the plaintiff getting in touch with his Counsel and after he fully recovered, he presented the petition along with an application for condonation of delay in filing the petition for restoration of the suit which was dismissed on 23-10-1997. ( 5 ) THE plaintiff had further deposed that steps had been taken for setting aside the order of dismissal by filing an application under Order 9, Rule 4. ( 6 ) THE learned Trial Judge after looking into the evidence and the respective pleadings of the parties was of the view that the plaintiff-petitioner was unable to give any worthwhile explanation as to why he had not attended the Court on 23-10-1997 as he was attending the Hospital for suffering malaria only intermittently. The further developments leading to accident and injury has not been taken note of by the learned trial Judge as the plaintiff had failed to give a valid explanation for his absence as on 23-10-1997. ( 7 ) IT appears that no centra-evidence was let in by the respondent and the matter was not contested very seriously on the aspect of allowing of the miscellaneous application. The fact that the petitioner suffered certain illness and had been hospitalised and had to undergo treatment for certain days are not in dispute. When prior to the date for letting in of the evidence of the plaintiff i. e. , earlier to 23-10-1997, the plaintiff in fact had suffered certain illness and because of it his normal activities had been disrupted. Plaintiff cannot be put to or held to strict punctuality to hold that technically that the plaintiff was hale and healthy on 23-10-1997. An illness can leave a person with many disadvantages and the fact is that the plaintiff was suffering from the effects of illness as on 23-10-1997. Therefore, the Trial Judge has definitely committed a material irregularity in not considering the application in its proper perspective. On a totality of the circumstances the application deserves to be allowed. For this the defendant-respondent can be suitably compensated by awarding costs for allowing the application for condonation of delay and afford an opportunity to the parties to lead evidence. ( 8 ) IN the circumstances the civil revision petition is allowed. The order dated 18-12-1999 dismissing the Miscellaneous Case No. 3 of 1998 is set aside. The application filed by the petitioner before the Court below under Order 9, Rule 4 read with Section 151 of the Civil Procedure code for restoration of Original Suit No. 46 of 1994 is allowed subject to the condition that the petitioner-plaintiff pays a sum of Rs. The application filed by the petitioner before the Court below under Order 9, Rule 4 read with Section 151 of the Civil Procedure code for restoration of Original Suit No. 46 of 1994 is allowed subject to the condition that the petitioner-plaintiff pays a sum of Rs. 1,000/- by way of cost to the defendant in the said suit within four weeks from the date of receipt of a copy of this order. No cost in this revision. --- *** --- .