The court has the power to set aside an ex parte order under Sec. 5 of the Limitation Act, but lack of a valid reason for delay and failure to take immediate action may not constitute sufficient cause.

JUDGMENT

1. This Civil Revision Petition has been filed against the order dtd. 28/11/2017 passed in I.A.No.1344 of 2016 in O.S. No.141 of 2009 on the file of Principal Senior Civil Judge, Kadapa.

2. The petitioner herein is the defendant and the respondents are the plaintiffs in the OS No.141 of 2009. I.A No.141 of 2009 was filed under Sec. 5 of Limitation Act to condone the delay of 130 days in filing the petition to set aside the ex parte order.

3. Brief facts of the case are that the respondents herein are the plaintiffs filed suit against the petitioner herein for grant of permanent injunction. The above suit was filed by the grandmother of the respondent against the petitioner herein for cancellation of gift deed dtd. 17/3/2008 executed by her in favour of the petitioner. Pending suit, the respondent died. Therefore, her legal representatives were added in the suit. Learned counsel for the petitioner submits that due to ill ness the counsel for the petitioner in the lower court was unable to proceed with case in time to take steps for setting aside the ex parte decree passed on 7/1/2016, therefore, requests this Court to condone the delay of 130 days in filing the petition under Order IX Rule 13 CPC. He further submits that there is no wilful or wanton delay on the part of the petitioner, and further, immediately after coming to know his knowledge, the petition has filed a petition to set aside the ex parte decree passed on 7/1/2016.

4. Respondents filed counter and denied all the allegations made in the petition. The petitioner is chronic defaulter and filing set aside petition to drag the matter. It is further stated that there is no proper explanation for each day delay. If the petition allowed, there is every possibility of the multiplicity of the case and therefore prayed to dismiss the petition.

5. Heard Mr. M. Solomon Raju, learned counsel appearing for the petitioner and Mr. M. N. Narasimha Reddy rep by Ms. P. Kusuma, learned counsel appearing for the respondents.

6. On hearing, this court observed that under Sec. 5 of Limitation act, court is having ample power to set aside the ex pate provided the other party is able to show sufficient cause.

7. This Court observed that the petitioner did not furnish any particular reason for non-prosecuting the case from 1/1/2016 onwards. It is also observed that the affidavit of the petitioner is silent about the efforts made by the petitioner in prosecuting his case. Except stating that the petitioner is far away due to his employment, no other reason was assigned by him for not prosecuting his case. He slept over all these years and coming with this petition to condone the delay under Order IX Rule 13 CPC. Except stating that his counsel suffering from ill health, there is no proof of record to that extent. Even after the petitioner was set ex parte on 7/1/2016, nothing prevented him to proceed with the case by engaging the Advocate.

8. In view of the foregoing discussion, it is observed that even otherwise after passing of ex parte decree the petitioner have to approach this Court immediately but he slept over all these years. The petitioner whatever the reasons contended in the petition are not at all tenable. However, this Court is inclined to give one more opportunity to contest the matter.

9. Accordingly, the Civil Revision Petition is allowed. The order dtd. 28/11/2017 passed in I.A.No.1344 of 2016 in O.S. No.141 of 2009 on the file of Principal Senior Civil Judge, Kadapa, is hereby set aside. Further, the petitioner is directed to pay costs of Rs.3,000.00 (Rupees Three thousand only) to the credit of O.S.No.141 of 2009 on the file of the trial Court. Further, since the suit pertains to the year 2009, the trial Court is directed to dispose of the same as expeditiously as possible, preferably within a period of six (06) months from the date of receipt of a copy of this order.

As a sequel, all the pending miscellaneous applications shall stand closed.