- (1.) THIS is an application in revision by a plaintiff. The material facts are that the plaintiff-applicant had filed a suit against the opposite party for recovery of Rs. 250/- on the basis of a pronote dated 30th April, 1961. The suit was initially filed in the Panchayati Adalat and it was decreed by that Court. The defendant-opposite party filed an application in revision before the learn ed Munsif under Section 89 of the Pan-chayat Raj Act (U. P. Act No. 26 of 1947) against the decree passed by the Panchayati Adalat. The learned Munsif found that the Panchayati Adalat had no jurisdiction to entertain the suit and he directed that the plaint be returned to the plaintiff for presentation to the proper court. The order of the learned Munsif directing return of the plaint was made on the 6th March, 1965. The plain tiff took back the plaint of the suit and filed it in the Small Cause Court on the 23rd March, 1965.
(2.) THE Judge, Small Cause Court found that the suit was barred by time and he dismissed it by his order dated 29-4-66. The plaintiff thereupon filed a petition in revision before the learned District Judge, but it proved futile. The learned District Judge found that al though the order returning the plaint for presentation to proper court had been passed by the Munsif on the 6th March, 1965 the plaintiff did not file the plaint in the court of small causes until March 23, 1965. In the opinion of the learned District Judge the plaintiff did not sufficiently account for the delay in filing the plaint on March 23, 1965. He observed that the affidavit sworn by the plaintiff to the effect that he was unable on account of illness to take back the plaint for presentation to the proper Court earlier than March 23, 1965 was unconvincing. He therefore, dismissed the application in revision by his order dated 24th November, 1966. Hence this application. Sri A. Banerji appearing for the applicant contends that as there was no counter-affidavit controverting the averments made by the plaintiff in his affidavit regarding his illness, it was incumbent on the part of the learned District Judge to have accepted the same and condoned the delay. He argued that the learned District Judge exercised his jurisdiction with material irregularity by rejecting the affidavit sworn by the plaintiff. The learned counsel for the applicant relied on Sections 5 and 14 of the Limitation Act in support of his con tention that the delay in presentation of the plaint of the suit to proper court should have been condoned by the learn ed District Judge particularly when there was no counter-affidavit sworn by the defendant-opposite party in rebuttal of the statements in the plaintiff's affida vit.
(3.) THE learned District Judge it appears, has given the plaintiff the bene fit of Section 14 of the Limitation Act and excluded the period from the 20th April, 1964 to the 6th March, 1965 during which the plaintiff had been prosecuting the suit bona fide in a wrong court with due diligence. The learned District Judge however, observed that the plaintiff should have accounted for satisfactorily each and every day from the 6th of March, 1965 when the plaint of the suit was ordered to be returned until the 23rd of March, 1965 when it was filed in the Small Cause Court. As already stated, the District Judge held that the plaintiff had failed to explain the delay for the period between the 6th March, 1965 and the 23rd March, 1965.;