PRAMOD KUMAR SHARMA Vs. UPENDER KUMAR AGARWAL

JUDGEMENT

(1.) These two revision petitions arise out of a common order passed in LA. Nos.931/91 and 932/91 in O.S.No. 1849/89 dated 21-2-1994 by the learned II Additional Judge, City Civil Court, Hyderabad. I.A.No. 931/91 was filed under Section 5 of the Limitation Act to condone the delay of 92 days in filing a petition under Order 9 Rule 13 CPC for setting aside the exparte decree passed in the suit dated 21-3-1991. The petitioners in these two petitions were defendants and the respondent was the plaintiff in the suit - O.S.No. 1849/89, which was filed for recovery of money based on an award. The decree was sought for Rs. 1,72,500/- with future interest as decreed. Since the defendants did not file any written statement for a long time, they were set ex parte on 7-2-91 and after recording evidence of the plaintiff by the Court, the suit was decreed ex parte on 21-3-91. The defendants filed the petitions-stated above on 3-7-91. Although the delay was found to be 102 days delay of 92 days was sought to be condoned. In the affidavit, the delay was sought to be explained by stating that the defendants had engaged one Advocate Mr. Peri Subba Rao who filed his vakalat but did not file his written statement and therefore, the case was adjourned from time to time, later he died and nobody could pursue the case including his son Advocate Mr. Peri Prabhakar who was quite new to the profession. Added to it, it is also pleaded that the delay was occasioned due to the death of the uncle of the defendants.

(2.) The petition was resisted by the plaintiff. After hearing both the sides, the learned II Additional Judge, City Civil Court, Hyderabad came to the conclusion that the defendants had failed to show sufficient cause for the delay in filing the petition for setting aside the ex parte decree and consequently not only dismissed such an application for condonation of delay, but also dismissed the petition for setting aside the ex parte decree. He has given number of reasons in the order, to demonstrate as to how the defendants were not diligent in the matter and as to how their case was sought to be demonstrated regarding their absence in the Court till the ex parte decree was passed.

(3.) The learned Advocate for the petitionershas pointed out that in a situation where the defendants were placed, they were helpless and although apparently their conduct may appear to be not diligent, it may not be termed as negligent because, after entrusting the matter to the learned Advocate, they were expecting die Advocate to intimate them about the future dates of hearing and unfortunately, the learned Advocate died. Since Mr. Peri Prabhakar is said to be quite new to the profession, he could not take all the steps which are necessary to inform the defendants and therefore, there was unavoidable delay resulting in passing of the ex parte decree.