THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.4591 of 2010 September 02, 2011 Between: M/s.Shriram Chits (P) Ltd., Ramachandrapuram, Represented by its Authorized Signatory, C.Venugopal Rao ... Petitioner And Yeleti Raja Kumari, D/o.John And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.4591 of 2010 ORDER: The petitioner is the plaintiff. A suit instituted by it against the respondents being O.S.No.782 of 2005 for recovery of chit amount of Rs.46,000/- was dismissed for default on 09.2.2009. The petitioner then filed an application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (CPC) to set aside the order dismissing the suit for default. A separate application being I.A.No.1020 of 2009 for condonation of delay of 96 days was also filed. The same was dismissed by the Court of the Principal Junior Civil Judge, Ramachandrapuram on 22.6.2010. This is assailed in this civil revision petition under Section 115 of CPC. The learned Counsel for the petitioner/plaintiff submits that the approach of the Court while considering the application filed under Section 5 of the Limitation Act, 1963 for condonation of delay should be liberal. The Court below, however, erred in not appreciating the fact that the petitioner’s lawyer became sick and underwent surgery, by reason of which he could not attend the Court. This is refuted by the Counsel for the respondents 1 and 2. It is well settled that when the application filed under Section 5 of the Limitation Act for condonation of delay is dismissed by the primary authority, the appellate or revisional Court should consider the facts independently. In the affidavit accompanying the interlocutory application, the petitioner pleaded as follows. The above matter is posted for trial on 09.2.2009 by this Hon’ble Court. Previously our panel Advocate Sri VSN Chowdary, Mandapeta used to conduct the matters before the Ramachandrapurama Courts. Subsequently Sri S.M.Sadiq Hussain, Advocate was appointed to our Penal Advocate to look after the Chit fund cases belong to Ramachandrapuram Branch at R.C.Puram Courts. Due to sudden sick and underwent operation our Advocate Sri S.M.S.Hussain could not attend before the Hon’ble Court on and this Hon’ble Court pleased to dismiss the matter for default as there is no representation. There is no intentional delay or negligence on our part in attending before this Hon’ble Court on 09.2.2009 and I am of the opinion my advocate will look after the matter. I came to know through our staff the matter was dismissed for default on 09.2.2009. I am advised to file this petition to condone the delay of 96 days in filing the Order IX Rule 9 petition. In rebuttal, the second respondent herein alleged that the allegation of the petitioner is not true and that during the relevant period, the petitioner proceeded with several suits in the Court through their staff and nothing prevented them from attending the Court at the time of dismissing the present suit for default. This allegation remained unrebutted. Further, the petitioner did not produce any evidence showing that their Advocate became sick and underwent surgery. Not even a third party affidavit is filed before this Court to that effect. The Counsel for the petitioner relies on State of Nagaland v Lipok AO[1] in support of his submission that Section 5 of the Limitation Act should be construed liberally. Therein the Supreme Court observed as follows. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. I n N.Balakrishnan v M.Krishnamurthy, (1998) 7 SCC 123 : AIR 1998 SC 3222, it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Applying the above principles, this Court is convinced that the petitioner has miserably failed to prove sufficient cause which is condition precedent for condonation of delay. The civil revision petition is devoid of any merit, and is, accordingly, dismissed. _________________ (V.V.S. RAO, J) September 02, 2011 YS [1] (2005) 3 SCC 752