The central legal point established is that in peculiar circumstances, the interest of justice may require granting a fair chance to contest a suit, even if the technical application of the law suggests otherwise.

JUDGMENT :

1. Heard.

2. Aggrieved by the rejection of their application for condonation of delay, consequently their petition under Order IX Rule 13 of CPC for setting aside the exparte decree, the defendants in O.S.No.1609/2016 on the file of XII Additional City Civil & Sessions Judge, Bengalure (CCH.No.27) have preferred the above appeal.

3. The respondent filed O.S.No.1609/2016 against the appellants for recovery of Rs.19,40,000/-with interest. The appellants appeared in the said suit and filed their written statement. However, thereafter they did not participate in the proceedings.

4. The trial Court on recording the respondent’s evidence on 23.04.2019, decreed the said suit. Thereafter the appellants filed Misc.No.302/2020 against the respondent for setting aside the ex-parte decree passed against them in O.S.No.1609/2016. Since there was 302 days delay in filing the petition, the appellants filed I.A.No.1 for condonation of delay. The ground urged to condone the delay and for their failure to appear before the trial Court in the proceedings in O.S.No.1609/2016 were one and the same.

5. Appellants contended that they are residents of Davanagere and they entrusted the case to the advocate at Bengaluru through their local advocate Sri B.M.Shivanandaiah. They further contended that their local advocate Sri B.M.Shivanandaiah unfortunately passed away, therefore there was no communication from the advocate representing them in O.S.No.1609/2016. They claimed that the delay in filing the petition as well as their non-participation in the proceeding in O.S.No.1609/2016 in the later stage was due to said bonafide reason.

6. On service of notice to the respondent, his Counsel filed memo in Misc.No.302/2020 conceding to allow the petition on costs. Despite that the trial Court rejected the application for condonation of delay and consequently the main petition on the ground that the appellants have not led evidence on their application for condonation of delay. The trial Court further held that since the appellants had filed written statement, Order IX Rule 13 of CPC does not apply.

7. Since the respondent filed memo conceding the reasons assigned to explain the delay, there was no reason for the trial Court to disbelieve the contention of the appellants that their local advocate died and therefore they could not get any communication from the advocate from Bengaluru.

8. Since the appellants appeared and filed their written statement in the suit, technically the trial Court may be right in saying that Order IX Rule 13 of CPC does not apply. However, though the written statement was filed, the appellants did not participate in the proceedings. Therefore in a wider meaning virtually the decree passed was an ex-parte decree. Since the respondent conceded for allowing the petition to set aside the ex-parte order, there is no reason to disbelieve the grounds urged by them to explain their lapses. In the peculiar facts and circumstances of the present case, interest of justice requires that the appellants shall be given fair chance to contest the suit. Therefore the appeal is allowed.

The impugned order is hereby set aside. The application of the appellants in Misc.No.302/2020 for condonation of delay is allowed. Misc.No.302/2020 is allowed.

The exparte decree dated 23.04.2019 in O.S.No.1609/2016 passed by XII Additional City Civil Judge, Bengaluru is hereby set aside.

Since the original suit is more than 5 years old, the parties shall appear before the trial Court on 17.01.2022 without any further notice. On said appearance, the trial Court shall give opportunity to both parties and dispose of the suit within six months. Appellants shall lose their right of contest if they fail to co-operate in the trial.

In view of disposal of main matter, pending I.As. stood disposed of.