This is a revision under section 115 CPC directed against the order dated

20.6.99 passed by the learned Civil Judge, Senior Division, at Agartala in Misc. (Res) Case No. 18 of 1999 dismissing the defendant-petitioners' application under section 5 of the Limitation Act, 1963 to condone the delay in filing the petition under Order 9 Rule 13 CPC for setting aside the ex parte decree dated 24.2.1998 passed in Title Suit No.28 of 1990.

2.1 have heard Mr. DR Choudhury, learned counsel for the defendant- petitioners as well as Mr. DB Sengupta, learned counsel for the plaintiff-respondent. I have also considered the records of the case.

3. The defendant-petitioner Nos 1 and 2 are brothers. The defendant-petitioner No.3 is wife of the defendant-petitioner No. 2. In the application for condonation of delay filed before the learned Civil Judge, it is stated that the defendant-petitioner No.l being an illiterate person and the defendant-petitioner No.3 being a woman and a house wife, the defendant-petitioner No.2 alone used to look after the case. He had become seriously ill since 5.3.97, had been bed­ridden for long and was still under treatment. His son Samir also had been suffering from serious heart trouble since January, 1997. He had to go to Calcutta and got his ailing son admitted in BM Birola Heart Centre. One of his heart valves was found damaged and he was under treatment till March, 1998. Besides heart ailment, his son was still suffering from respiratory trouble. The defendant-petitioner No.2, himself seriously ill, had to stay in Calcutta for long along with his wife, the defendant-petitioner No.3, for treatment of their son. Under the circumstances, he could not look after the case and could meet his Advocate Mr. DR Choudhury only on 20.7.98 and came to know from him that in the meantime the case was decreed exparte against them on 24.2.1998 and the limitation period of thirty days from that date to file a petition under Order 9 Rule 13 CPC for setting aside the exparte decree was already over. His Advocate took time from 21.7.98 to 25.7.98 to collect necessary information/papers/copies etc and then prepared the petition for setting aside the ex parte decree as well as the application for condonation of delay, got the same typed and filed in the Court of the Civil Judge on 28.7.1998. In the application for condonation of delay, the defendant-petitioners asserted that the delay was not for any laches and negligence on their part and that if the delay was not condoned, they would suffer irreparable injury. The doctor's prescriptions and medical certificates in support of illness have been annexed to this application and the averments made therein are supported by an affidavit sworn by the defendant-petitioner No.2.

4. Mr. DR Choudhury, learned counsel for the defendant-petitioners, strenuously argues that the impugned order dismissing the application for condonation of delay suffers from illegality and material irregularity and that the learned Civil Judge misinterpreted the decisions of the Apex Court in the matter of condonation of delay, and refers to the decision in Collector Land Acquisitions & another vs. Mst Katiji & others reported in AIR 1987 SC 1353 wherein it has been held :

“.... The expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appeal to have percolated down to all the other Courts in the hierarchy. And such liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown

out at the very threshold and cause of justice being

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