IMPORTANT POINT
The court established that the reasons for condonation of delay must be compelling and consistent, and prior participation in related legal proceedings can undermine claims of incapacity or ignorance regarding court actions.

JUDGMENT

1. The applicant has challenged the order passed by the Trial Court rejecting application for condonation of delay in setting aside ex parte decree.

2. The respondents/original plaintiffs filed suit for specific performance of agreement to sell dated 28 August 2002. The applicant was duly served with suit summons. She engaged an Advocate; however, failed to file written statement. Therefore, by order dated 22 February 2011, the suit proceeded without written statement of defendant. The Trial Court by judgment and order dated 1 March 2012 passed ex parte decree for specific performance.

3. Yesterday learned Advocate for the applicant made submissions on merits. Present petition was adjourned only to enable parties to place on record copy of reply to application for condonation of delay.

4. Today she submitted that Advocate Halwasia will be appearing on her behalf, she requested to permit the Advocate to make submissions on behalf of the applicant. It is consistent practice followed by this Court that whenever matter is part heard, or substantially heard the Advocate who argued the matter earlier needs to continue with his submission. Yesterday, the applicant was granted full opportunity to make her submissions. She made all her submission yesterday. Today , it was fixed only for the purpose of producing reply to the application for condonation of delay. As a matter of law, such reply needed to be filed along with petition; however, due to lapse of Advocate for petitioner to annex such reply, petitioner should not suffer, hence opportunity to file reply was granted till today.

5. Taking into consideration consistent practice followed by this Court that in a part heard matter no new Advocate is entitled to make his submission. I, refuse to allow Advocate Halwasia to make submissions; hence, the request of Advocate to permit another Advocate Halwasia to appear on behalf of applicant, is rejected.

6. Learned Advocate for the respondents relying on his reply submitted that petitioner contested the proceeding filed by one Dinesh Nathhuram Poshirkar under Section 138 of Negotiable Instruments Act, during relevant period. Learned Magistrate delivered judgment on 3 July 2015.

7. The applicant has filed rejoinder to the affidavit-in-reply to state that proceeding filed by Dinesh Nathhuram Poshirkar under Section 138 of the Negotiable Instruments Act, where she appeared and contested, has no relevance in the present proceeding. The applicant be put strict all the proof of facts occurred during January 2013 to March 2015. She appeared in the said proceeding. She further stated in affidavit-in-reply that the said proceeding was wound up within two to three dates in June 2015 or July 2015 she appeared only for recording statement under Section 313 of the Code of Criminal Procedure, 1973.

8. Since the present application arises out of decision making process of rejection of application for condonation of delay, this Court is entitled to take into consideration pleading in the application for condonation in delay and material in support of the said application. Therefore, in my opinion, no other material than material which was not before the Trial Court while rejecting the application of condonation of delay, can be considered in proceeding under Section 115 of the Code of Civil Procedure, 1908.

9. On 27 March 2015, the defendant filed an application for setting aside ex parte decree along with application for condonation of delay. In support of application for condonation of delay, the applicant furnished reasons as under:

<WXY>(i) her husband was suffering from high blood pressure, kidney disease and diabetes; on 20 January 2013 he died during hospitalization;

(ii) the applicant was not aware about the proceeding pending before the Court as she was busy in taking care of her husband in hospital;

(iii) after 28 January 2013, she was under medical treatment for depression and was under the shock of her husband's death.</WXY>

10. The respondents c