KURRA LINGAIAH Vs. OYARA GANU

JUDGEMENT

(1.) The defendants in O.S.No. 1 of 1988 on the file of Senior Civil Judge, Asifabad, filed this revision petition against the order dated 14-12-2000 in I.A.No. 18 of 1994 dismissing the petition filed by them under Section 5 of the Indian Limitation Act, 1963, to condone the delay of 521 days in filing a petition under Order 9 Rule 13 C.P.C, to set aside the ex parte decree dated 31-7-1992.

(2.) The plaintiff filed a suit for declaration of his title over and for possession of the plaint schedule property. Later he died. His legal representatives, namely, the present respondents in this revision petition came on record as plaintiff s in the suit. The revision petitioners - defendants contested the suit. Plaintiffs adduced evidence on their behalf. After closure of their evidence, the revision petitioners changed their counsel and subsequently, as clear from the impugned order, took number of adjournments for adducing evidence on their behalf. Ultimately they did not adduce any evidence on their behalf. Their counsel reported no instructions for the revision petitioners in the trial court. The trial court set ex parte the defendants and passed an ex parte decree on 31-7-1992.

(3.) On 28-1-1994 the revision petitioners filed a petition under Section 5 of the Limitation Act along with a separate petition under Order IX Rule 13 C.P.C., to set aside the ex parte decree. In the delay condonation petition, only one cause is mentioned. 4th defendant in his affidavit stated that he went to Maharashtra State on some work and therefore he was not aware of the further proceedings in the suit and about the trial court passing ex parte decree against the petitioners. It is stated across the Bar that the village in Maharashtra State to which the 4th defendant is said to have gone is just about 5 kms from the suit village. It may not be a material fact for disposing of this revision petition. It is also further stated in the affidavit that the first defendant was looking after the litigation and it was also further alleged that he might have colluded with the plaintiffs in the suit. This ground is to be rejected. The reason is very simple. If the other defendants really felt that the first defendant was colluding with the plaintiffs in the suit, they would not have joined the first defendant as one of the petitioners in the delay condonation petition. The fact that all the defendants joined together and filed a common petition to set aside the ex parte decree clearly indicates that all of them are sailing together and therefore the ground regarding alleged collusion between the first defendant and the plaintiffs is a false ground. It is to be stated further that the first defendant is not shown as one of the respondents in the delay condonation petition. It amounts that he also pretends that he is colluding with the plaintiffs. The said reason is absurd and to be rejected at the threshold itself.