ORDER :

The defendant in the trial Court filed this civil revision petition under Section 115 of C.P.C. impugning the order dated 03.05.2019 passed in I.A.No.42 of 2018 in O.S.No.11 of 2011 by the learned I Additional District and Sessions Judge, Visakhapatnam. The respondent herein was the plaintiff before the learned trial Court.

2. O.S.No.11 of 2011 was a suit for permanent injunction to restrain the defendant therein from interfering with peaceful possession and enjoyment of the immovable property by the plaintiff. At some point of time, the defendant did not participate in the trial process and he was set ex-parte and during subsequent hearings, the suit was adjudicated and decree in favour of the plaintiff was passed. It is thereafter, the defendant therein intended to file an application under Order IX Rule 13 of C.P.C. seeking to set aside the judgment that was passed ex-parte. However, he found that there was 136 days delay in filing the said application and therefore, to condone that delay he also filed an application under Section 5 of the Limitation Act. Both these applications were heard together and the learned I Additional District and Sessions Judge, Visakhapatnam did not find sufficient cause to condone the delay and therefore, he dismissed both the applications. Aggrieved by the same, the defendant in the suit filed this civil revision petition stating that the learned trial Court did not consider the grounds raised by this revision petitioner in seeking to condone the delay and that the trial Court failed to see that the petitioner is a business man suffering from Ocular Tuberculosis and as a consequence of it, he lost his visual capacity and he has been taking treatment at Shankar Netralaya, Chennai, which is a far off place. It is on these grounds he requests the Court to upset the impugned order.

3. Learned counsel for the respondent submits that since the revision petitioner failed to file any document indicating his sickness and failed to offer appropriate reasons for his absence and for the fact that he made incorrect averments in the petition, the learned trial Court rightly refused to condone the delay and this Court need not interfere with that reasoned order in this revision.

4. Considering the material available on record and the submissions made by both the learned counsel, the point that arises for consideration is:

“Whether the impugned order suffers from material irregularity or illegality as the learned trial Court failed to consider the facts and failed to exercise discretion in the manner that is expected of law?”

5. Point:

The revisionist claims that the facts he narrated in his affidavit filed before the learned trial Court were not at all considered by the learned trial Court. Therefore, it is incumbent on part of this Court to look into his petition and find out whether the learned trial Court considered the facts averred in the petition. In his sworn affidavit filed before the learned trial Court this petitioner stated that he has been suffering from disorder to his eye and he has been taking treatment at Shankar Netralaya, Chennai while he himself is a resident of Visakhapatnam. At para No.3 of his affidavit, it is stated that it is in those circumstances he was unable to contact his advocate and pursue the suit on 30.06.2017 and the suit was decreed ex parte since he could not file his written statement on the date fixed by the Court. As against this, the respondent herein, who filed his counter in the interlocutory proceedings before the learned trial Court, made an averment at para No.5 that the above allegation of the petitioner is incorrect and in fact the petitioner as a defendant had filed his written statement and the trial took place and on 30.06.2017 the case was coming up for cross-examination of PW.1.

6. The above rival contentions were noticed by the learned trial Court and at para No.6 of the impugned order, it has recorded that this revision petitioner filed written statement