Applicability of the provision in filing petition to set aside ex-parte order.

K.M. Natarajan, J.

1. The plaintiff in the suit has preferred these two revisions against the orders passed in I.A.Nos.307 of 1987 and 357 of 1987 in O.S. No. 100 of 1985 on the file of the Sub Judge, Thiruvannamalai. The facts which are necessary for the disposal of these two revision petitions are as follows:- The plaintiff filed the suit against defendants 1 to 3 for the relief of specific performance on the basis of an oral agreement of sale with the first defendant. The suit was posted for the first hearing on 29-8-1986. The second defendant filed a written statement. The third defendant who was impleaded subsequently adopted the written statement. Since the first defendant did not appear, she was set ex parte on the first hearing date, namely, 29-8-1986. The first defendant filed the petition, I.A. No. 307 of 1987 to set aside the ex parte order passed against her and permit her to conduct the suit. It is alleged in the affidavit that the suit was filed against her, her daughter the second defendant and another, on the basis of an oral agreement of sale. At the time when the summons was served on her, she was at Malaysia and she could not come to Thiruvannamalai and engage a counsel. Her daughter the second defendant in whose favour she had executed a settlement deed appeared in court and filed a written statement. She has already sent a reply notice to the notice sent by the plaintiff prior to her going to Malaysia setting out all the defence. She would further state that she has recently come down to India on a temporary visa for the conduct of the suit and she was informed by her counsel that she was set ex parte on the first hearing date when she was absent. She has also stated that it was due to reason beyond her control she could not appear, that she is not filing any separate written statement that she only adopted the written statement already filed by the second defendant, her daughter and that she only wanted to participate in the trial to deny the allegation of the respondent (plaintiff) that there was an oral agreement of sale between her and the plaintiff and that no prejudice would be caused to the other side and that her presence is necessary for the final and effective adjudication of the suit claim. The revision petitioner, who is the plaintiff, resisted the said application and filed a counter. He also filed I.A. No. 357 of 1987 under Section 3 of the Limitation Act to dismiss the application I.A. No. 307 of 1987. It is alleged by the revision petitioner in the affidavit filed in support of the application as well as in the counter affidavit filed in the other application that the present application under Order 9, Rule 7, C.P.C. is not maintainable as it was not filed within 30 days and that in view of the fact that no petition to condone the delay under Section 5 of the Limitation Act is filed, the application is liable to be dismissed as it is barred by limitation. Further, in view of the admitted fact the first defendant came to India only to give evidence and that the counsel appearing for the other defendant, it cannot be said that she had no knowledge of the exparte order till 22-9-1987. The first defendant had no defence at all. She cannot adopt the written statement filled by her daughter, as her defence is different from the defence of the other defendants. Hence the petition filed by the first defendant is liable to be dismissed and the application filed by the plaintiff is to be allowed.

2. The Subordinate Judge allowed I.A. No. 307 of 1987 on the ground that the petition is only to set aside the ex parte order against the first defendant in as much as she wants only to adopt the written statement already filed by the other defendant and that the plaintiff will not be prejudiced in any manner. The application I.A. No. 357 of 1987 filed by the plaintiff was dismissed in view of the fact that IA. No. 307 of 1987 was allowed and the petition has become infructuous. Aggrieved by the same, the