Andhra HC (Pre-Telangana)
Gadiraju Vidyulatha vs Indla Venkateswarlu on 18 January, 2005
Equivalent citations: 2005(2)ALT587, 2005 A I H C 1575, (2005) 2 CURCC 218 (2005) 2 ANDH LT 587, (2005) 2 ANDH LT 587, 2005 AIHC 1575
ORDER C.Y. Somayajulu, J.
1. Respondent filed the suit for recovery of amount covered by the suit promissory note, which was dismissed for default on 2-5-2000. Subsequently, respondent filed a petition Under Order 9 Rule 9 C. P. C. to restore the suit with a petition to condone delay of 389 days, with the affidavit sworn to by the counsel for the respondent in the trial Court, explaining the reasons for the delay. The Court below accepted the explanation and condoned the delay. Hence this revision by the defendant.
2. In the affidavit sworn to by the counsel for respondent in the trial Court he stated that his clerk wrongly noted the suit number as 8 of 2000 instead of 7 of 2000 and so he was following proceedings as recorded in the B-diary of the court in respect of O. S. No. 8 of 2000, and only when the respondent approached him, after proper verification, he came to know that the suit number was wrongly noted and that the suit of respondent was dismissed for default for non-representation, and since the lapse was on his part but not on the part of the respondent the delay occurred in filing the petition for restoration may be condoned.
3. The main contention of the learned counsel for the revision petitioner is that since this Court deprecated the practice of counsel for parties swearing to affidavits filed in support of applications in Pasupuleti Subba Rao v. Nandavarapu Anjaneyulu, the Court below ought not to have acted on the affidavit of the counsel for the respondent in the trial Court and should have insisted on the respondent filing his affidavit in support of the application. It is his contention that since respondent did not swear to an affidavit explaining the reasons for the delay it has to be taken that respondent was not diligent in prosecuting his case and so the Order Under revision is not sustainable. The contention of the learned counsel for the respondent is that since the delay in filing the petitioner for restoration is explained in the affidavit filed in support of the application, the court below did not commit any error in condoning the delay and so there are no grounds to interfere with the order under revision.
4. As per Rule 59 of the Civil Rules of Practice and Circular Orders 1980 (for short 'the Rules') every interlocutory application has to be supported by an affidavit and true copies of the documents, if any, intended to be relied on by the applicant and should be filed after giving three day notice of that petition to the advocate for the opposite party, unless otherwise ordered by the Court. The said rule does not lay down that the affidavit filed in support of the application should have to be sworn to by the party filing the application. As per Rule 60 of the Rules, any fact required to be proved in interlocutory proceedings shall, unless otherwise provided by the Rules, or ordered by the Court, be provided by affidavit.
5. In a petition to condone delay filed Under Section 5 of Limitation Act, the cause for the delay has to be explained by the party who seeks condonation of the delay. In this case, delay of 389 days is sought to be condoned on the ground that there was a mistake on the part of the counsel for the respondent in the trial Court. Since the mistake allegedly took place in the office of the counsel for the respondent in the trial court, counsel for the respondent in the trial Court is the proper person to explain the delay. So even if the respondent swore to an affidavit stating the facts, it would be in the nature of hearsay, because he does not have personal knowledge about the said facts and so, in order to prove those facts, he has to necessarily file the affidavit of his counsel in the trial Court.
6. Since Rule 59 of the Rules does not mandate that the application has to be supported by the affidavit of the concerned petitioner and since there is no provision in the Rules which mandates that the applications filed without the affidavit worn to by the party concerned should not be entertained, the fact that the respondent did not swear the affidavit in support of the application is not of any consequence. It is no doubt true that in Pasupuleti Subba Rao case (1 supra) relied on by the learned counsel for the revision petitioner, the learned Judge deprecated the practice of advocates for parties swearing to affidavits filed in support of applications filed on behalf of the parties, after taking notice of the fact that such practice is prevalent in this State. I also agree with the view taken by the learned Judge that the practice of advocates swearing the affidavits in all types of applications, without rhyme or reason should be deprecated. But in cases where the lapse or lach is on the part of the counsel his wearing to the facts leading to the lapse etc. Cannot be found fault with in this case, delay took place due to a lapse or mistake in the office of the counsel for the respondent in the trial Court i.e. due to nothing a wrong suit number. Since judicial notice can be taken that in the B-diary from which the date of adjournments would be noted by the counsel or the registered clerks of advocates only suit numbers but not the names of parties, would be mentioned, accepting the explanation offered by the counsel for the respondent in the trial Court, the Court below condoned the delay. Since the mistake committed by him can be spoken to and proved by the counsel for the respondent in the trial Court, the fact that respondent did not swear to an affidavit in support of the application is of no consequence and so find no grounds to interfere with the Order of the Court below and so the civil revision petition is dismissed. No costs.