Important Point—Power to proceed to decide on merits is permissive and not mandatory.

1. The first respondent in CMA No.5 of 2010 on the file of Senior Civil Judge, Siricilla, who is the plaintiff in O.S. No.44 of 2008, filed this revision petition under Article 227 of the Constitution of India challenging the Order dated 08.04.2011 in CMA No.5 of 2010, whereby the learned Senior Civil Judge allowed the CMA while setting aside the order dated 04.10.2010 in I.A. No.107 of 2010 in O.S. No.44 of 2008 passed by the Junior Civil Judge, Vemulawada.

2. The revision petitioner was the plaintiff in O.S. No.44 of 2008 and 1st respondent in I.A. No.107 of 2010, whereas the first respondent herein was the 6th defendant in O.S. No.44 of 2008 and the petitioner in I.A. No.107 of 2010 and respondents 2 to 6 were the defendants 1 to 5 in O.S. No.44 of 2008. But to avoid confusion in referring the parties, they will hereinafter be referred to as the revision petitioner and respondents as arrayed in the civil revision petition, for convenience sake.

3. The revision petitioner filed suit in O.S. No.44 of 2008 for partition and other consequential reliefs before the Junior Civil Judge, Vemulawada, Karimnagar District. Respondents 1 and 6 contested the suit appearing through their counsel and filed written statement, whereas the other respondents were set exparte. During trial, P.Ws.1 and 2 were examined on behalf of the plaintiffs, but they were not cross-examined by the counsel for respondents 1 and 6 herein. Later the matter went on several adjournments, but neither the first respondent nor his counsel turned up, to cross-examine P.Ws.1 and 2 and to adduce evidence on behalf of respondents 1 and 6. Thereupon the court passed the decree on 17.03.2016.

4. Later on, the first respondent filed I.A. No.107 of 2010 under Rule 13 of Order IX of the Code of Civil Procedure, 1908 (for short ‘CPC’) to set aside ex parte preliminary decree, explaining the delay contending that during first week of October 2009 she suffered from severe back ache and spondylosis. As per the advise of the Doctor, she has taken bed rest for about six months, thereby she could not contact her counsel to know the stage of suit and the counsel also could not cross-examine P.Ws.1 and 2 and other witnesses produced by the plaintiff, who is the revision petitioner herein, due to lack of instructions as she was completely on bed she could not file affidavit in lieu of examination-in-chief and tender herself to cross-examine her by the adversary, examining any witness before the court. Therefore, she was prevented by a cause which is beyond her reasonable control i.e. back ache and spondylosis and thereby preliminary decree passed by the trial court is an ex parte decree and prayed to set aside the ex parte decree.

5. The revision petitioner filed counter denying the material allegations inter alia contending that his affidavit in lieu of examination-in-chief was filed on 09.11.2009 and thereafter documents were marked as Exs.A.1 to A.15 and the suit was adjourned for his cross-examination by the counsel for respondents 1 and 5, but they failed to cross-examine the petitioner. Later, he filed affidavit in lieu of examination-in-chief of P.W.2 under Rule 4 of Order XVIII of CPC. He was also not cross-examined inspite of granting several adjournments. Ultimately the cross-examination of P.W.2 was also closed and the suit was adjourned for defendants’ evidence. But respondents 1 and 6 did not examine any witness and the matter was heard on 15.03.2010, pronounced the judgment on 17.03.2010 passing the preliminary decree, on merits. Therefore, the decree passed on merits cannot be set aside and the petition under Rule 13 of Order IX of CPC is not maintainable. It is also contended that the allegations that she suffered from backache and spondylosis during the first week of October 2009 and took bed rest on the advise of doctor for a period of six months and thereby she could not contact her counsel are all false and that the docket proceedings of the suit would discl