Point of Law: Exparte Decree - Condonation of Delay – Failure to explain day-today delay and vague averment – Without sufficient reasons Courts cannot exercise discretion and condone the delay as a matter of judicial generosity

ORDER :

1. As the issue is one and the same in both the CRPs, with the consent of both the counsels, this Court is passing common order.

2. C.R.P. No.3646 of 2019 is filed by the petitioner/defendants against the order, dated 4.09.2019 passed in I.A. No.257 of 2018 in O.S. No.42 of 2017 on the file of the Court of Senior Civil Judge, Mangalagiri. C.R.P. No.3645 of 2019 is filed by the petitioners/defendants against the order, dated 4-09-2019 passed in I.A. No.258 of 2018 in O.S. No.42 of 2017 on the file of the Court of Senior Civil Judge, Mangalagiri.

3. Brief facts of the case are that both the petitioners are husband and wife and they are defendants in the suit in O.S. No.42 of 2017 filed by the respondent herein, for recovery of money based on the foot of promissory note. In the above suit, after receipt of summons, petitioners approached one J.S.Ganesh, Advocate at Tenali, who is said to be their relative. The said Advocate informed them that he will entrust the vakalat to a Consel at Mangalagiri and on that premise, petitioners kept quiet. Subsequently, petitioners received notice in E.P. No.250 of 2017 on the file of the Court of Principal Senior Civil Judge, Eluru and they came to know that exparte decree was passed in the above suit. Having come to know about the same, petitioners filed two I.As i.e., I.A. No.257 of 2018 seeking to condone the delay of 228 days from 9.7.2017 to 21.2.2018 in filing the petition under Order IX, Rule-13 Code of Civil Procedure, 1908 (for short ‘CPC’) to set aside the exparte order and I.A. No.258 of 2018 seeking to set aside the exparte order, dated 8.6.2017, passed in O.S. No.42 of 2017. After considering the material on record, the learned trial Judge dismissed both the petitions, by orders, dated 4.09.2019.

4. Aggrieved by the said orders, the petitioners herein filed the present two civil revision petitions.

5. Heard learned counsel for the petitioners and learned counsel for the respondent.

6. Learned counsel for the petitioners submit that after receipt of summons in O.S. No.42 of 2017, the petitioners approached one S.J. Ganesh, Advocate at Tenali, who assured them that he will entrust the file to an advocate at Mangalagiri. Due to misfortune, the said Advocate has not filed his Vakalat on 17.4.2017, as such, the petitioners were set exparte and exparte decree was passed on 8.6.2017 by the learned Senior Civil Judge, Mangalagiri and it is only when they received notice in E.P.No.250 of 2017, they came to know about passing of exparte decree against them. He further submits that the Counsel, who was entrusted to defend their case, has expired, as such, they were not aware of the exparte decree. Hence, there is no negligence on their part and sought condoning the delay of 228 days in filing the petition under Order IX, Rule-13 CPC. He also points out that the petitioners were very much diligent even prior to the filing of the suit in view of the fact that they issued two reply notices, dated 8.10.2016 and 27.10.2016 to the plaintiff. It is further contended that the petitioners have no necessity to borrow money and that the promissory note was fabricated one.

7. In support of his contentions, learned counsel for the petitioners relied upon the judgment reported in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649. The Hon’ble Supreme Court has framed certain guidelines in the above judgment, which reads as follows :

21.1(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalilse injustice but are obliged to remove injustice.

21.2(ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining