A litigant's health and circumstances can justify a substantial delay in restoring a suit, warranting careful consideration by the court.

ORDER:

Aggrieved by the orders passed in IA.No.1532 of 2018 in OS.No.5 of 2012 dated 12.12.2022 on the file of Principal Junior Civil Judge, Adoni, the present revision is filed.

2. The petitioner is the plaintiff and the respondents are the defendants in the court below. The petitioner herein filed a suit vide OS.No.5 of 2012 on the file of Principal Junior Civil Judge, Adoni for permanent injunction restraining the defendants and their men from obstructing or inferring in any manner from using the Rastha by taking the bullock cart which is existing from time immemorial, which is running from East-West from the lands of the defendants to reach the land of the plaintiff. When the suit is coming for trial, the same was dismissed for non prosecution on 24.07.2017. In those circumstances, the present I.A.No.1532 of 2018 has been filed under Section 5 of Limitation Act to condone the delay of 339 days in filing the petition for restoration of the suit, on the ground that the petitioner is not keeping good health and his counsel before the court below on that particular day was in some other court conducting trial work. Due to ill health the petitioner did not contact the counsel for filing the petition for restoration of suit as such occurred delay in filing the petition for restoration of the above suit.

3. The respondents/defendants filed counter opposing the same. The court below after hearing both parties, dismissed the said application vide its order dated 12.12.2022. Aggrieved thereby, the present revision is filed.

4. Heard Mr. Y.Koteswara Rao, learned counsel for the petitioner and Mr. B.Sarvotham Reddy, learned counsel for the respondents.

5. Learned counsel for the petitioner in elaboration to what has been raised in the grounds contended that, the petitioner on that particular day could not appear before the court due to ill health and his counsel also was held up in another court and hence, there was no representation. Consequently, the court below dismissed the suit for non prosecution. Thereafter, the petitioner could not give instructions to his counsel to file restoration application in time due to ill health. After recovering from ill health, the present application has been filed to condone the delay of 339 days in filing restoration petition. But, the court below dismissed the said application erroneously without assigning any proper reasons.

6. Learned counsel for the petitioner further contended that non representation on 24.07.2017 is neither wilful nor wanton. The court below ought to have given one more opportunity to the petitioner/plaintiff to prosecute his suit. However, the delay application was dismissed without considering the reason offered by the petitioner and further failed to see that no prejudice will be caused to the defendants. The delay can always be condoned and the suit be restored by compensating the defendants by imposing costs. However, the court below without considering the same dismissed the application.

7. Learned counsel for the petitioner further contended that, the court below dismissed the application with an observation that the petitioner has filed this condonation of delay application without specifying any reasonable cause. The court below while dismissing, observed that the petitioner in his chief examination affidavit stated that he is not having good health and unable to contact his counsel to file his chief examination affidavit. Whereas, in the cross examination, it is stated that on the day of dismissal of the suit i.e., OS.No.5 of 2012, he approached his counsel which is contrary to the pleadings mentioned in the affidavit. The court below by taking into consideration the judgment reported in Kommidi Mahender Reddy Vs.

Kommidi Suryamma1 has dismissed the application through the said judgment is not applicable to the present facts of the case.

8. Learned counsel further contended that time and again Hon’ble Apex Court has categorically held that delay should not come in the w