ORDER :

1. This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, 1908 ("CPC"). The Petitioner is defendant No.3 in O.S. No.197 of 2003 on the file of the Principal Junior Civil Judge, Piler. Respondent No.1 is the Plaintiff, while Respondent Nos.2 and 3 are Defendant Nos.2 and 4, respectively, in the Suit.

2. Learned counsel appeared for the Revision Petitioner. None for Respondents.

3. The brief facts giving rise to this Revision are as follows:

Respondent No.1 instituted O.S. No.197 of 2003 before the trial Court seeking:

(i) partition of the plaint schedule properties into three equal shares by metes and bounds and allotment of one such share to the plaintiff by passing a preliminary decree and, thereafter, a final decree;

(ii) costs of the suit; and

(iii) such other reliefs as the Court may deem fit and proper.

3. Defendant No.1, who is not a party to the present Revision, filed a written statement, which the present Petitioner (Defendant No.3) adopted. Defendant Nos.2 and 4 remained ex parte. The Plaintiff examined herself as P.W.1. As Defendant Nos.1 and 3 remained absent on 12.11.2009, the trial Court set them ex parte. On 13.11.2009, the trial Court passed an ex parte preliminary decree in favour of the Plaintiff.

4. The Revision Petitioner thereafter filed an application under Order IX Rule 13 CPC to set aside the ex parte preliminary decree dated 13.11.2009. She also filed an application under Section 5 of the Limitation Act, 1963, seeking condonation of a delay of 701 days in filing the application under Order IX Rule 13 CPC.

5. The application under Section 5 of the Limitation Act was numbered as I.A. No.352 of 2012. After hearing both parties, the trial Court dismissed the application. Assailing it, the aggrieved D3 preferred revision.

Brief contentions in the I.A.No.I.A.No.352 of 2012:

6. The Revision Petitioner pleaded that the suit was posted on 12.11.2009 for the cross-examination of P.W.1. Her counsel had addressed a letter to her village informing her of the hearing. However, she did not receive the letter as she, along with her family, had migrated to Tirupati in search of livelihood owing to drought conditions in her village and remained there for more than two years. Consequently, she could not appear before the trial Court on 12.11.2009. The trial Court, therefore, set her ex parte and passed a preliminary decree on 13.11.2009. After returning to her village, she received notice in the final decree proceedings. On verifying the court record through her counsel, she learnt that the Suit had already been decreed. She thereafter filed the application under Order IX Rule 13 CPC along with an application to condone the delay of 701 days.

7. The Respondent No.1/Plaintiff opposed the application by filing a counter, contending that the Petitioner had failed to establish sufficient cause for condonation of the delay.

8. The Plaintiff/Respondent No.1 denied the Petitioner's assertion that she had migrated to Tirupati due to drought conditions. It was contended that the Petitioner had full knowledge of the proceedings and that her counsel did not cross-examine P.W.1 for want of instructions. The trial Court, being satisfied with the evidence on record, passed the preliminary decree on 13.11.2009. The Plaintiff further contended that the Petitioner had not disclosed the date on which she received notice in the final decree proceedings, the date on which she left for Tirupati, or the date of her return to the village. According to the Plaintiff, the Petitioner wilfully neglected to prosecute the suit and, therefore, the inordinate delay of 701 days did not deserve to be condoned.

9. The remaining defendants did not contest the application.

Observations:

10. By the impugned order, the learned Judge observed that P.W.1 was examined on 12.11.2009 and that, as Defendant Nos.1 and 3 remained absent, they were set ex parte. Since Defendant Nos.2 and 4 had already been set ex parte, the learned Judge passe