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Madras High Court · body

2007 DIGILAW 1804 (MAD)

Dhanalakshmi v. Radhakrishnan

2007-06-18

M.CHOCKALINGAM

body2007
Judgment :- Challenge is made to an order of the Principal District Munsif, Gingee made in I.A.No.884 of 2004 in an unnumbered O.S. to condone the delay of 1068 days in representation of the plaint. 2. The Court heard the learned counsel for the revision petitioner and the respondent. 3. The suit was filed for recovery of money alleging that the defendant therein/ respondent herein borrowed a sum of Rs.16,000/- agreeing to pay the principal along with the interest. Due to non repayment of the amount, a suit was filed. The plaint was returned for rectification and to be represented within a stipulated time. But it was not done so. When the representation was made, there was a delay of 1068 days. Under the circumstances, instant application in I.A.No.884 of 2004 is filed to condone the delay. The lower court was not satisfied with the reasons put forth by the plaintiff and hence, dismissed the application. Aggrieved against the same, the revision petitioner has come forward with the above revision petition. 4. The only contention put forth by the learned counsel for the petitioner is that the petitioner was old, feeble and sick and was not in a position to walk. Due to this, she could not consult a lawyer and could not be represented the plaint which was returned on 11. 2001. Hence, the lower court should have been allowed the application. But not done so. If the application is not allowed by condoning the delay, the plaintiff would lost her entire money. Hence, the revision has got to be ordered. 5. The learned counsel for the respondent would submit that even from the affidavit it is seen that the plaint was returned not only for rectification of mistake but also for affixing the court fee. But there was a delay of 1068 days for representation of the plaint. The reason adduced that the petitioner was old, feeble and sick could not be accepted for simple reason that the plaintiff was 45 years old. No evidence was available to prove her sickness which causes the delay of 1068 days. As such, the reason adduced by the plaintiff could not be accepted. The revision petition has got the dismissed. 6. After considering the rival submissions, the Court is of the considered opinion that the order of the lower court has got to be sustained. No evidence was available to prove her sickness which causes the delay of 1068 days. As such, the reason adduced by the plaintiff could not be accepted. The revision petition has got the dismissed. 6. After considering the rival submissions, the Court is of the considered opinion that the order of the lower court has got to be sustained. Admittedly, it was a suit for recovery of money. The plaint was returned on 11. 2001 and the same was represented after the delay of 1068 days. Firstly, even from the affidavit it could be seen that the same was returned for affixing the court fee. In a given case, where stipulated time was given within which the court fee should have been paid, but the same has not been paid. The application under Section 149 of CPC should have been made. But in the instant case, no application was made under Section 149 of CPC and no application was made seeking extension of time before the lower court. But directly, the application was filed to condone the delay of 1068 days under Section 151 of CPC. Thus the procedural lacuna is noticed in making such application and hence, the delay that was caused in affixing the court fee, which was not extended by time, could not be condoned. 7. Secondly, it was averred in the affidavit that the petitioner is old but the petitioner was only 45 years old. There was no material to accept that she was sick. The lower court considered the contentions put forth by the petitioner and correctly dismissed the application. The Court is unable to see any reason to interfere with the order of the court below. Hence, the Civil Revision Petition is dismissed. No costs. Consequently, connected MP is closed.