Condonation of delay under Section 5 of the Limitation Act requires a showing of 'sufficient cause'. Mere claims of ill-health without supporting medical evidence or explanation for the inaction of other co-plaintiffs are insufficient to condone a substantial delay.

JUDGMENT:

Being aggrieved by the order dated 14-07-2017 in IA.No.92 of 2017 in OS.No.75 of 2014 on the file of I Addl. District Judge, Khammam, where under, their petition under Section 5 of Limitation Act for condoning the delay of 357 days in filing the petition for restoring the suit which was dismissed for default, the petitioners who are plaintiffs in the above referred suit have filed this Civil Revision Petition under Section 115 of Civil Procedure Code (for short ‘C.P.C.’) on the following grounds.

2. The learned trial Judge ought to have seen that the suit filed by the petitioners herein vide OS.No.75 of 2014 was for specific performance of agreement of sale, thereby, could have allowed their application and condoned the delay, so that the suit which was dismissed for default could have been restored. The Court below failed to observe that the first petitioner herein categorically stated in her affidavit that was filed in support of the petition about her ill-health and joint pains as she was constrained to take bed-rest for so many months, she could not attend the Court on 19-11-2015 and the Court below ought to have considered the difficulty and could have allowed their petition. They have also claimed that the Court below ought to have seen that the matter was posted on 19-11-2015 for settling the issues but the Court without giving one more opportunity, dismissed the suit under Order 10 Rule 4(2) of C.P.C. which is improper according to the petitioners. They have also claimed the Court below ought to have seen that there is no chance of compromise if their application was dismissed, could have allowed the petition by providing an opportunity to the petitioners.

3. As could be seen from the impugned order and other record placed before this Court, it shows that the petitioners herein have filed OS.No.75 of 2014 before the Court below for specific performance of agreement of sale. When the petitioners/plaintiffs failed to attend the Court, the suit preferred above was dismissed for default on 19-11-2015. Subsequently, the petitioners have filed IA.No.92 of 2017 under Section 5 of Limitation Act with a prayer to condone the delay of 357 days in filing the petition under Order 9 Rule 9 C.P.C. for restoration of the suit which was dismissed for default. In the affidavit filed in support of the petition, the first petitioner/plaintiff No.1 has submitted that she could not attend the court on 19-11-2015 as she was suffering from joint pains and taking bed-rest as per the advice of Doctors and she could not contact his counsel for giving instructions. She has also claimed that after recovery from health, she contacted her counsel to know the stage and her counsel advised her to file petition for condoning the delay as their suit was dismissed for default.

4. The respondent/defendant has opposed the petition and counter has been filed, wherein they have specifically contented that the affidavit filed in support of the petition discloses the failure of the first petitioner/plaintiff to attend the Court but nothing has been stated in the affidavit as to what happened to the other petitioners, who are also plaintiffs in the suit, they could have attended the Court. The respondent has claimed that except a statement in the affidavit, there is no other evidence to believe that the first petitioner was unable to move from the bed for more than a year and there is no explanation for the day-to-day delay in filing the application, thereby, sought for dismissal of the petition.

5. It is a fact that the Court below disposed Interlocutory Application by a cryptic order in