THE HON’BLE SRI JUSTICE D.S.R.VARMA CIVIL REVISION PETITION No.213 of 2010 ORDER: Heard learned counsel for the petitioner. Learned counsel for the respondent is not present nor there is any representation on his behalf. This Civil Revision Petition is directed against the order and decree, dated 21.12.2009, passed by the II Additional District Judge, Vijayawada, in I.A.No.595 of 2009 in unnumbered A.S. of 2009, whereunder the application filed under Order 41 Rule 3(A) of the Code of Civil Procedure seeking to condone the delay of 34 days in filing the appeal was dismissed. The petitioner is the defendant in the suit. From a reading of the impugned order, it appears that the petitioner had stated in the affidavit, filed in support of the said application, that he could not contact his counsel as he was in great depression, due to which his health condition also got deteriorated and could not concentrate on further proceedings. But, the Court below found that there was no sufficient proof in support of this contention and accordingly, dismissed the present application. No doubt, the Court below cannot be faulted with for the impugned order passed by it. But, however, it is expedient for the Court to take into account the mental state of the party who looses the legal battle. Some times due to some inexplicable reasons there might be delay in filing an application and the Court below ought to have dismissed on those ground, if any, or otherwise it is expedient for the Court to condone the delay and proceed with the suit proceedings. Of course, such discretionary jurisdiction shall have to be exercised by the Court below depending upon the facts and circumstances of each case and not necessarily in every such case, wherein such a pleading is taken. Further, the Court below, obviously, appears to have passed the impugned order in anger, though not be faulted with. Hence, having regard to the facts and circumstances, particularly as the delay of 34 days is not very huge and the nature of the suit being for recovery of a sum of Rs.1,36,800/-, the Civil Revision Petition is liable to be allowed. In the result, the Civil Revision Petition is allowed, setting aside the order, dated 21.12.2009, passed by the II Additional District Judge, Vijayawada, in I.A.No.595 of 2009 in unnumbered A.S. of 2009. There shall be no order as to costs. ______________________ JUSTICE D.S.R.VARMA 08th October 2010 dr