THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 4823 OF 2008 Date of Judgment: 21.10.2011 Between: Gangavaram Harinath Reddy …Petitioner and G. Gunasekhar ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 4823 OF 2008 ORDER: The petitioner’s application seeking condonation of delay of 86 days in filing a petition for restoration of suit, was considered and dismissed by the court below under the impugned order. Hence this revision. Heard learned counsel for the petitioner yesterday as well as today. There is no appearance for the respondents even today. The affidavit filed by the petitioner in support of the application for condonation of delay states that after filing of the present suit for recovery of amount on the basis of pro note, he had left for USA and was not present on 26.7.2007 when the case was dismissed for default. It is stated that after coming back from USA, the petitioner became sick and could not contact his counsel. Counter- affidavit filed by the respondents states that sufficient time was given to the petitioner/plaintiff to lead his evidence, but he had not shown any interest. It is, however, significant to notice that the petitioner’s allegation that he went to USA and was not in India is not controverted. Further more, the affidavit of the petitioner also states that he shifted his residence from door No. 6-1-151 to door No. 6-1-184 and as such could not receive any communication from his advocate also. The averments made by the petitioner in detail as above were, however, not controverted except for a general denial. The court below ought to have appreciated that having filed a suit for recovery of money, based on pro note, the petitioner would not stand to any gain by deliberately remaining absent from the court on the date of hearing i.e., 26.7.2007. The application for condonation in such circumstances could have been liberally considered by the court below. The reason given by the court below that the petitioner had not stated the date on which he went to USA and the date of return as well as the date on which he fell sick by itself does not mitigate against the cause shown by the petitioner in his affidavit. The material statements of the petitioner as above were not denied. In any case, costs would sufficiently satisfy the prejudice caused to the respondents on account of the default on the part of the petitioner. In the circumstances, the application for condonation of delay deserves to be allowed subject to payment of costs. The impugned order is set aside, IA No. 189 of 2008 in OS No. 25 of 2006 shall stand allowed on condition of the petitioner depositing costs of Rs.5,000/- (Rupees Five Thousand only) to the credit of suit within four weeks from today. On such deposit, the respondents shall be entitled to withdraw the same, without furnishing any security. If the petitioner complies with the order as aforesaid, the court below shall take up the application for restoration as well as the suit and deal with the same in accordance with law. The revision petition is disposed of accordingly. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 21.10.2011 KR