IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1931 OF 2008 BETWEEN Mareddi Chinnappa. …PETITIONER AND Smt. Desu Vijaya Kumari and others. …RESPONDENTS Counsel for the petitioner: MR. S. LAKSHMINARAYANA REDDY Counsel for the Respondents: MR. S.S. BHATT FOR R1 to R4 The Court made the following: - ORDER: The respondent in I.A.No.524 of 2002 on the file of the Senior Civil Judge, Madanapalle and defendant in O.S.No.63 of 1997 is seeking to question the impugned order of the Court below dated 20.09.2007 condoning the delay of 1062 days in filing petition under Order 9 Rule 9 of the Code of Civil Procedure, 1908 to restore the suit. 2. The respondents herein, who are petitioners in I.A.No.524 of 2002 and plaintiffs in the suit, stated that originally the suit was filed by the husband of the first respondent herein and all the respondents are his legal representatives viz. wife and children and only one of them has just attained majority. The suit was filed by the original plaintiff for realization of amount covered by suit pronote and when the said suit was posted on 21.06.1999 the first respondent herein could not attend the suit, as she was seriously ill and the suit was accordingly dismissed for default. The first respondent produced a medical certificate substantiating her illness and inability to attend the Court on the date fixed, as above and requested restoration of the suit by stating that now she has recovered. The said application was contested by the petitioner herein admitting that the suit is part-heard and claimed that one of the legal representatives i.e. the fourth respondent having been declared as major ought to have followed the suit, even if the first respondent was not well. He, therefore, claimed that sufficient cause is not made out by the respondents. The Court below on consideration of the oral evidence of P.W.1 and R.W.1 was of the opinion that after the death of the original plaintiff his wife and children i.e. respondents herein are prosecuting the suit and the first respondent being the only lady, who has to look after as well as instruct the fourth respondent, her inability to attend on the medical grounds as supported by Ex.A1 certificate was accepted by the Court below and the delay accordingly was condoned. Questioning the said order this revision is preferred. 3. Heard both the learned counsel. 4. Mr. Lakshmi Narayana Reddy, learned counsel appearing for the petitioner strenuously contended that delay of over 3 years is sought to be explained by the first respondent on the ground that she suffered from body pains and that by itself cannot be a ground and illness is not as such, as to disable the first respondent to prosecute the suit for over three years. Learned counsel also states that the fourth respondent is examined as P.W.1 and he is said to be major, but neither any affidavit of the fourth respondent is filed nor any explanation is filed and the discretion exercised by the Court below is, therefore, said to be perverse. 5. Learned counsel for the respondents, on the other hand, submits that as directed by this Court, he was required to file an affidavit of the Doctor, who had issued Ex.A1 medical certificate and accordingly he has filed the said affidavit dated 08.09.2010 after duly serving the same on the other side counsel on 18.11.2010. Learned counsel submits that the discretion exercised by the Court below under Section 5 of the Limitation Act does not deserve to be interfered with, particularly, when a part heard suit is being restored for continuation. 6. The affidavit of the Doctor produced by the respondents’ counsel shows that the first respondent was treated by him from 15.05.1999 till 27.03.2002 and it also states that she was suffering from Anteoporosis. It is, no doubt, true that there is no affidavit of the fourth respondent, who is said to have been examined as P.W.1 but as the Court below has rightly appreciated that he is only one of the legal representatives and the only major son at that point of time to the first respondent, he would naturally be instructed by his mother and on account of the illness of the mother, the suit came to be dismissed in default on 21.06.1999. It is well settled that the length of the delay is not relevant but the sufficient cause must be established by the application seeking restoration of the suit as well as condonation of delay under Section 5 of the Limitation Act. 7. On the facts and circumstances herein, keeping in view that this suit is part heard and suit being only for recovery of money based on a pronote, it would not be just and proper to interfere with the impugned order of the Court below condoning the delay. The reasons given by the Court below under the impugned order are clearly sustainable and are not perverse. I am, therefore, not inclined to interfere with the impugned order. 8. However, allowing of this application would now restore the suit and the same would be tried. In the event of the respondents/plaintiffs succeeding in the suit, 1,062 days, which are consumed in the non-prosecution of the suit, however, should not give an additional advantage to the respondents to claim interest on the suit claim for the aforesaid amount also. In that view of the matter, the Court below shall now take up the application under Order 9 Rule 9 CPC, if not already ordered and thereafter, proceed with the suit in accordance with law expeditiously. The respondents shall not be entitled to claim pendente lit interest for 1,062 days, which delay has now been condoned under the impugned order. The Court below shall make a note of the same and if the respondents succeed in the suit incorporate the same in the decree. The civil revision petition is disposed of in terms of the above. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 16, 2010 Note:- Furnish C.C. of the order in one week. (B/o) DSK