NALLA LALCHAIAH Vs. ABDUL RAZAK

JUDGEMENT

(1.) Respondents herein filed O.S. No. 13 of 1985 in the Court of Subordinate Judge, Bhongir for the relief of declaration of title, recovery of possession and payment of mesne profits in respect of the suit schedule property against the petitioners herein.

(2.) A written statement was filed on behalf of the petitioners. The trial of the suit commenced. P.W.1 was examined in chief as well as in cross. At that stage, the 1st petitioner who is said to have been entrusted with the task of pursuing the matter is alleged to have suffered a paralytic stroke on 15.1.90. He is said to have undergone treatment till 2.4.1992. Obviously because there were no instructions, counsel for the petitioners herein reported no instructions. The trial Court proceeded to adjudicate and decide the matter and ultimately decreed the suit on 25.6.1990. Subsequently, other petitioners verified the developments and on coming to know that the suit was decreed, they filed an application under Oder IX Rule 13 C.P.C. to set aside the ex-parte decree. Since there was delay in filing the application, they filed I.A. No. 145 of 1992 under Section 5 of the Limitation Act to condone the delay of 745 days. The trial Court rejected the I.A. through its order dated 11.9.1997. Hence, this revision.

(3.) Learned counsel for the petitioners submits that the petitioners herein have exhibited proper diligence in prosecuting the proceedings by filing the written statement as well as by cross-examining P.W.1. It is stated that non-participation in the proceedings was on account of the paralytic stroke suffered by the 1st petitioner who was authorized to look after the matter. He contends that once the counsel for the petitioners therein has reported no instructions, it was obligatory on the part of the trial Court to issue notices to the petitioners herein and that the trial Court had committed an illegality in proceeding to deliver the judgment without hearing the petitioners and without setting them ex-parte. Learned counsel also submits that while considering the application to condone the delay, the trial Court did not assign any reason whatsoever, though, a specific plea was raised and supporting material was placed before it.