JUDGMENT :

Prayer : - Civil Miscellaneous Appeal filed under under Order 43 Rule 1 of CPC, preferred this Memorandum of Civil Miscellaneous Appeal against the fair and final order dated 13.08.2014 made in I.A.No.13231/2012 in O.S.No.3180/2005 on the file of the learned III Additional Judge, City Civil Court, Chennai.

1. The plaintiff in OS.No.3180/2005 which suit was pending on the file of the learned III Additional Judge, City Civil Court, Chennai, is the appellant herein.

2. OS.No.3180/2005 had been filed by the plaintiff seeking specific performance of 1/10th share with respect to the suit property consequent to an Agreement of Sale dated 08.06.1995. The suit property is land and building measuring 2 grounds and 1299 sq.ft., in Mahalakshmi Street, T.Nagar, Chennai.

3. The suit had been instituted against 7 defendants. The said suit, unfortunately, did not proceed in its normal way and owing to various reasons, when it was posted in the special list, owing to non appearance of the plaintiff, had been dismissed for non prosecution on 12.09.2007. The plaintiff then appears to have filed an Interlocutory Application under Order 9 Rule 9 of CPC in SR.No.46167/2007 and a perusal of the original records shows that it had been presented in the office on 22.10.2007. This would indicate that the application had been presented well after thirty days which is the time prescribed within which an application under Order 9 Rule 9 of CPC should be filed. Since it had been filed after expiry of thirty days, an application to condone the delay under Section 5 of the Limitation Act should have been filed. It was not filed. The fact that it was not filed and that it was pre-requisite to file the application under Order 9 Rule 9 of CPC was also not pointed out either by the Registry in the City Civil Court or by the learned Judge who subsequently took it up for consideration. This particular Interlocutory Application in IA.SR.No.46167/2007 also did not proceed in a normal manner.

4. The records reveal that it was returned for compliance, namely, to give the correct date of the ex-parte order on 24.12.2012. It was represented on the very same day and correction has been made in the affidavit with respect to the date on which the suit was dismissed for non prosecution. The said correction in the affidavit had also not been attested by the advocate who had attested the affidavit as required under the Civil Rules of Practice. At any rate, the Interlocutory Application was assigned a number as IA.No.13231/2012. That came up for hearing for at least two years and finally, it was dismissed by an order dated 13.08.2014. Questioning that particular order, the present Appeal had been filed by the plaintiff.

5. Heard Mr. G. Ethirajulu, learned counsel for the appellant and Mr. V. Raghavachari, learned counsel appearing for the 7th respondent.

6. In view of the fact that there was no clarity with respect to the actual date on which the Interlocutory Application under Order 9 Rule 9 of CPC has been presented before the City Civil Court, both the learned counsels had stated that it would only be appropriate that this Court examines the original records and I should be grateful for that particular suggestion given by the learned counsels and accordingly, the original records were summoned.

7. A perusal of the same would show that though the affidavit and petition, which are both dated 19.09.2007, had been presented in the City Civil Court only on 22.10.2007. It was returned only on 24.08.2012 and it was represented on the same day. A further aspect which now comes to the notice of this Court is that it was returned for giving the correct date on which the suit was dismissed for non prosecution and the date had been corrected in the affidavit, but the said correction had not been attested or verified. The Rules of Practice states that any correction in an affidavit should be attested by the Advocate, who attested the affidavit when it was originally filed. This would