HON'BLE MR JUSTICE N.V. RAMANA C.R.P. No. 4410 of 2008 DATED: 30.10.2009 Between: S. Prabhakar .. Petitioner and The Commissioner .. Respondent O R D E R:- This Civil Revision Petition is directed against the order dated 03.07.2008 passed in I.A. No. 1208 of 2007 in O.S. No.1279 of 2005 whereby II Additional Senior Civil Judge, Ranga Reddy District, dismissed the petition filed under Section 5 of the Limitation Act, praying to condone the delay of 36 days in filing the petition under Order IX Rule 9 CPC. The petitioner-plaintiff filed the suit in O.S. No.1279 of 2005 for declaration of his title to the suit schedule property and for perpetual injunction against the respondent. The suit is coming up for trial. On 01.02.2007, when the matter was called, the petitioner-plaintiff was not present and there was no representation on his behalf. Therefore, the Court below dismissed the suit for default. Praying to set aside the said default order, the petitioner filed the present application and the Court below, by the order under revision, dismissed the application. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the material placed on record. Admittedly, the present application is filed under Section 5 of the Limitation Act. While considering an application filed under Section 5 of the Limitation Act, what the Court should mainly satisfy for itself is whether the applicant, who requests for condoning the delay in filing the application, has properly explained the delay by giving cogent and convincing reasons. The Court below instead of considering whether the delay sought to be condoned has been properly explained or not, has dealt with the aspects relating to trial of the suit and the petitioner’s failure to be present for trial and his failure to produce the documents to prove his case in spite of granting adjournments and providing opportunities. The aspects, which the Court had dealt with, are aspects which have to be considered in an application filed under Order IX Rule 9 CPC, seeking to set aside the default order and not in an application filed under Section 5 of the Limitation Act. At any rate, since there is delay of only 36 days in filing the application to set aside the default order, the Court below instead of dismissing the present application, ought to have condoned the delay, and then considered the application filed by the petitioner to set aside the default order. In that view of the matter, the order under revision cannot be sustained, and the same is liable to be set aside. Accordingly, the Civil Revision Petition is allowed and the order dated 03.07.2008 passed in I.A. No.1208 of 2007 in O.S.No.1279 of 2005 by II Additional Senior Civil Judge, Ranga Reddy District, is set aside. The delay in filing the application to set aside the default order is condoned. The costs imposed by the trial Court shall be paid within two weeks from the date of receipt of this order, if already not paid. Since the delay is condoned, the Court below is directed to take up the application filed by the petitioner praying to set aside the default order. No costs. ______________ N.V.RAMANA, J 30.10.2009 bcj