A plaintiff is not required to provide an explanation for the delay in filing an application for restoration of a suit if the application is filed within 30 days of the dismissal of the suit.

Though the matter was posted for settlement, since the appellant had agreed to pay a sum of Rs.40,000 to the 2nd respondent in full quit of the decree obtained by the said respondent against the father of the appellant, today the respondents’ counsel reports mat his clients are not willing for the terms. It is admitted that the execution petition was filed for a sum of Rs.78,000 in 1984. When the principal amount is Rs.2,80,000 after giving due credit to the payments made by the father of the appellant, the arrears being Rs.78,000 the respondent herein filed the execution petition. After the court’s suggestion, the appellant herein had deposited a sum of Rs,40,000 in full quit of the claim. But, however, the counsel for the respondents represented that the second respondent is not agreeable for any settlement, since the execution is levied for the balance of Rs.78,000 as on 1984. Before ever the disposal of the E.P., the appellant herein has filed the suit O.S. No.585 of 1988 on the file of the Sub-Court, Trichy for partition. The said suit has been dismissed for default on 3. 1993.

2. The appellant has filed the suit O.S. No.584 of 1972 for partition of his share. The suit has been filed against the father, the first respondent herein and the second respondent was also made a party. On 3. 1993, the suit was dismissed for default. On 23. 1993 the appellant filed an application I.A. No.273 of 1993 for restoration of the suit on the ground that though on 3. 1993 the appellant came to court, the bus suffered a break down and he could not reach the court till the afternoon and when he reached the court after lunch, he came to know through the counsel that the suit had been dismissed for default. Thereafter, he filed an application for setting aside the order of dismissal. However, the lower court not satisfied with the explanation given by the appellant, had dismissed the application I.A. No.273 of 1993 by order dated 3. 1994. As against this order, the present appeal has been filed.

3. The learned counsle for the appellant contended that the lower court has committed an error in dismissing the application because the lower court did not consider the explanation given by the appellant for his absence on the date of hearing. However, the lower court has proceeded on the basis that there is contradiction between the statement in the affidavit and the evidence of the appellant and on that ground the explanation given by the appellant cannot be taken as true. Further the contradiction would establish that neither the appellant nor his counsel was present in court on 3. 1993.

4. On the contrary, the counsel for the respondent contended that the appellant has stated in the affidavit that he was held up on the way to the court on 9.3,1993 due to the brake down of the bus and he could not reach the court before ever the case was called. Subsequently he met the counsel on the same day and came to know about the dismissal of the suit. If this statement is correct, the appellant ought to have filed the application for the restoration of the suit either on 3. 1993 itself or at least on the very next day. The delay of nearly 20 days in filing the application for restoration of the suit, since the application has been filed on 23. 1993 has not been properly explained and hence the delay has to be construed that the appellant came to know about the dismissal of the suit only at a later point of time and not on 3. 1993. Hence the order of the court below is correct.

5.I carefully considered the contention of both the counsel. There is no dispute that the case was listed for hearing on 3. 1993. The appellant has stated in his affidavit that he was residing at Pathaikadu village 60 miles away from Trichy. On 3. 1993, he could not reach the court in time and meet the lawyer to instruct him that due to the break down of the bus in which he was travelling from his village there was a delay of three hours in reaching the court and in the m