Petitioners in I.A No.4555 of 2014 and 4556/14 in O.S No.272 of 2013 on the file of the First Additional Munsiff Court, Kozhikode are the revision petitioners herein. The first respondent herein as plaintiff filed O.S No.271 of 2013 on the file of the First Additional Munsiff Court, Kozhikode for declaring his right over the plaint schedule property on the basis of a joint will executed by one Gopalan Nair and his wife, Madhaviamma, who is none other than the sister of first defendant and 4th defendant and for mandatory injunction directing the defendants to vacate the premises. The suit was listed on 01.11.2014. On that day the defendant did not appear and so they were declared ex parte and the suit was decreed ex parte on 05.11.2014. According to the revision petitioners, they did not appear on 01.11.2014 on the ground that defendants 4 to 11 told her that since their advocate was not present, they will be moving for an adjournment and on the belief that the case will be adjourned on that day, they did not appear. On 06.12.2014 when they went to the office of their advocate, it was revealed that the suit was decreed ex parte on 05.11.2014. Immediately they have taken steps to file I.A No.4556 of 2014 to set aside the ex parte decree along with I.A No.4554 of 2014 to condone the delay of the days in filing the application.

2. The first respondent filed counter contending that the allegations are not sufficient to condone the delay as well as to set aside the ex parte decree. There is not sufficient reason given by the petitioners for not attending the court on 01.11.2014 when the case was listed for trial. Further advance notice will be given when a suit is listed for trial. Further non appearance of defendants 4 to 11 is not a ground for not appearing for defendants 1 to 3 as they were represented by a senior counsel and the counsel appearing for defendants 4 to 11 is a junior counsel attached to the office of the same senior counsel. So he could have conducted the case for and on behalf of the petitioners as well. Further the presence of the petitioners is not required on that day as the plaintiff is claiming right over the property on the basis of a will and the burden is on him to prove the will. Further, though the case was listed on 01.11.2014, it was decreed ex parte only on 05.11.2014 and there is a duty cast on the defendants to enquire about the progress of the case immediately after 01.11.2014. But they alleged to have enquired only on 06.12.2014. Further even on the basis of the merit of the case, the defendants have no right over the property and the joint will was executed in the year 1989 and the husband of Madhaviamma died in 1999 and Madhaviamma died much later. Further the defendants 1 to 3 are residing in another house of their own and their case was that the plaint schedule building was let out to the first defendant on a monthly rent of Rs.300/- by late Madhaviamma from 01.10.1999. But no document has been produced to prove their case. On the other hand, the documents produced by the plaintiff will go to show that they were residing elsewhere and there is no necessity for them to take the plaint schedule property on rent as claimed by them. Their attempt is only to protract the proceedings and there is no bona fide in filing the application and he prayed for dismissal of the petition.

3. It is seen from the lower court order that though the respondent had insisted for evidence of petitioners and it was posted for evidence on three occasions, no oral evidence was adduced. Thereafter the court below after hearing both sides dismissed the application for condonation of delay as there is no valid reasons stated for the delay and consequently dismissed the application to set aside the ex parte decree as well as per order dated 07.04.2015.

4. Thereafter the revision petitioners filed C.M.A No.50 of 2015 before the District Court, Kozhikode along with a delay condonation application of 35 days in filing the