MANI BAI Vs. AVINASH JAMIDAR

JUDGEMENT

(1.) BEING aggrieved by the order dated 4 -8 -2003, passed by IInd ADJ, Indore in M.A. No. 18/2001, whereby the order dated 28 -4 -2001, passed by IInd Civil Judge Class -II, Indore in Misc. Civil Case No. 29/97 was confirmed and the application filed by the petitioner under Order 9, Rule 13, Civil Procedure Code along with section 5 of Limitation Act was dismissed, the present petition has been filed.

(2.) SHORT facts of the case are that the respondents No. 1, 2 and 3 were filed the suit against the petitioner, which was numbered as 118/84 -A, for which the petitioner was served and did not appear. Therefore, suit proceeded in ex -parte Civil Rev. No. 433 of 2003 decided on 12 -8 -2005. (Indore) from 1 -10 -1984. Ultimately on 8 -7 -1988, an ex -parte decree was passed against the petitioner. On 29 -11 -1994, an application under Order 9, Rule 13, Civil Procedure Code was filed, wherein it was prayed that the ex -parte decree passed against the petitioner be set aside. The ground for setting aside the decree was taken that the petitioner obtained the permission from the authorities of Municipal Corporation for construction of house and at that time the petitioner was told by the officers of the Municipal Corporation that she is not suppose to contest the case filed by respondents No. 1 to 3.

(3.) VIDE order dated 28 -4 -2001, the Learned Trial Court dismissed the application against which the appeal was filed, which was also dismissed. Learned Counsel for the petitioner submits that no doubt a considerable time has passed when the petitioner applied for setting aside of the ex -parte decree but it is on the advise of the authorities of Municipal Corporation that petitioner was misguided. Learned Counsel for the petitioner placed reliance on a decision in the matter of TV. Balakrishnan v. M. Krishnanmurthy reported in VII (1998) SLT 334, wherein the Hon'ble Supreme Court has held the length of delay is no matter, acceptability of the explanation is the only criterion sometimes delay of the shortest range may be un -condonable due to want of acceptable explanation, whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. In this case, the Hon'ble Apex Court set aside the order passed by the Trial Court on a condition of payment of Rs. 10,000/ - as cost.