V HARITHA Vs. KAPILA CHIT FUNDS PRIVATE LIMITED

JUDGEMENT

(1.) The civil revision petition is directed against the order dated 3.11.2003 passed by the learned II Additional Senior Civil Judge, Warangal, in I.A. No.604 of 2003 in O.S. No.860 of 2001.

(2.) The Defendants 1 and 10 in the said suit are the revision petitioners. The first respondent herein is the plaintiff and the Respondents 2 to 11 herein are the Defendants 2 to 9 and 11. The said suit was laid for recovery of an amount of Rs.3,87,471.75 ps. It was resisted on the premise that the first defendant paid an amount of Rs. 1,32,000.00 on 13.9.2001; Rs.31,618/- on 12.1.2002; and Rs.46,760- on 19.4.2002 but the plaintiff did not deduct the same from out of the total amount; and that the first defendant was not liable to pay the amount as claimed in the plaint. During the course of trial one witness was examined on the side of the plaintiff in chief and the suit stood adjourned to 13.6.2003 for cross-examination of P.W.I. For the default on the part of the defendants on that day, an ex parte decree was passed. An application under Order 9, Rule 13 of the Code of Civil Procedure ('the Code' for brevity) was sought to be filed accompanied by an application in LA. No.604 of 2003 for condoning the delay of 10 days occasioned in filing the said application. The case of the petitioners/ defendants 1 and 10 was that the first defendant could not contact his Advocate on 13.6.2003 and instruct him to cross-examine P.W.I and due to his absence on that day, the suit was decreed ex parte; and that his absence on that day was not wilful and he had good grounds to win the case. The plaintiff resisted the same on the premise that since the decree passed on 13.6.2003 was not an ex parte decree but on merits an appeal would lay and there had been no valid reasons to condone the delay.

(3.) The Court below refused to condone the delay of 10 days. As aforesaid, the defendants 1 and 10 are now assailing the said order.