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Andhra High Court · body

2008 DIGILAW 40 (AP)

P. Ranjith Kumar Reddy v. S. Satyanarayana Raju

2008-01-24

L.NARASIMHA REDDY

body2008
ORDER:- 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. 2. 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. 3. 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. 4. Though the respondent was served with notice, he has not chosen to enter appearance. 5. 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. 4. Though the respondent was served with notice, he has not chosen to enter appearance. 5. 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: "In the result, the petition shall be allowed on payment of costs of Rs.1,000/-, payable on or before 17.4.2007 and filing chief affidavit, failing which the petition shall be stand dismissed." The purport of the order is clear to the effect that the petition is allowed, on compliance with two conditions, viz; a) payment of costs of Rs.1,000/-, on or before 17.4.2007; and b) filing of affidavit, in lieu of chief-examination of PW-1. Default clause was also added. 6. It is not in dispute that the petitioner deposited the amount of costs, within the stipulated time. From a perusal of the order, it was clear that even the trial court did not feel the necessity, to fix any time limit for filing of affidavit, in lieu of chief-examination, obviously because the occasion would arise, if only the suit is restored to file. However, on the next date of hearing, it proceeded, as though the said affidavit ought to have been filed before 17.4.2007. This is contrary to what the trial court itself observed in its order, dated 13.4.2007. 7. At any rate, as long as the suit is not formally restored to file, there does not exist any occasion for the petitioner, to file an affidavit, in lieu of chief-examination. The course of action adopted by the trial court, in fact, would suggest a contradiction in terms. It must not be forgotten that filing of affidavit, in lieu of chief-examination, is nothing but a substitute for examining the witness, in the court. If the suit itself is in a condition of dismissal, it is ununderstandable as to how a witness can be examined, at this stage. 8. For the foregoing reasons, the CRP is allowed, and the order under revision is set aside. Consequently, I.A.No.28 of 2006 shall stand allowed, and the trial court shall take up the application filed under Order IX Rule 9 CPC, forthwith. There shall be no order as to costs.