SWARAN DEVI Vs. SITA DEVI

JUDGEMENT

(1.) THIS revision petition has arisen out of an order dated 18.1.2003 passed by the Ist Additional District Judge, Jammu whereby an ex parte preliminary decree drawn on 12.8.1999, has been set -aside.

(2.) IN a suit for partition filed by petitioners herein as plaintiffs in the court of Additional District Judge, Jammu, respondent, Sita Devi was arrayed as one amongst six defendants. She filed her written statement through Mr. R.P. Sangra, Advocate and thereafter absented from the proceedings. The trial court framed issues on 2.11.1996 and the plaintiffs were in process of leading evidence when respondent, Sita Devi was proceeded ex parte vide order dated 8.5.1997. The trial court passed ex parte preliminary decree vide order dated 12.8.99 against respondent. Respondent made application on 16.12.1999 seeking setting aside ex parte decree and judgment dated 12.8.1999 passed in the suit on the ground that she is an old lady of 70 years and is a chronic diabetic patient. It was stated that she had engaged Mr. R.P. Sangra, Advocate to defend her in the suit. She further alleged that she being an old and unhealthy lady had conveyed to her counsel that she will not be in a position to attend the case on each and every hearing and her counsel should appear on her behalf. It is also averred that the counsel assured her that he will appear and remain in touch with her. According to the respondent, she approached her counsel on 20.1.99 to enquire about the proceedings in the case. The counsel was unable to provide exact information regarding the latest position of the case and next date of hearing. This prompted her to approach the court, when she came to know that ex parte proceedings had been initiated against her on 12.8.1999. The applicant accordingly made an application on 16.12.1999 after obtaining copy of the impugned judgment and decree. The trial court after inviting objections from the petitioner herein, allowed the application vide impugned order dated 18.1.2003. It is against this order that the present plaintiff/petitioner has come up before this Court. The only argument that has been addressed before me is, that application filed by respondent was barred by time and no application for condonation of delay was made and therefore, the trial court had no jurisdiction to allow the application, which was otherwise barred by time.

(3.) THE trial court has dealt with the question of limitation and specifically observed that application filed by respondent for setting aside ex - parte proceedings itself contains a prayer for condonation of delay. The trial court accordingly rejected the plea of the present petitioner for dismissal of application in absence of separate condonation application for condoning the delay. The trial court is of the opinion that in view of the plea raised in the application itself seeking condonation of delay, the technical plea of not filing separate application, is not to be accepted.