Substantial justice should be preferred over technical considerations in setting aside an ex parte decree.

L. MOHAPATRA, J.

( 1 ) THE application of the petitioner for setting aside the ex parte decree having been rejected and the same having been confirmed in appeal, this revision has been filed.

( 2 ) THE opposite party had filed the suit - M. S. No. 42 of 1996 against the petitioner in the Court of the learned Civil Judge (Senior Division), bhanjanagar, for realisation of Rs. 14, 378. 75 with pendente lite and future interest. The petitioner who is an advocate did not file his written statement after some adjournments, as a result of which he was set ex parte on 2/9/1998. On 3/9/1998 the suit was taken up for ex parte hearing and the ex parte decree was passed on 10/9/1998. After ex parte decree was passed, the petitioner filed an application under Order 9, Rule 13. CPC for setting aside the same. In the application the petitioner stated that his wife was suffering seriously since 1/9/1998 and since he was busy rendering medical assistance to his wife, being the sole male member of the family he could not file the written statement, resulting the ex parte decree. The wife of the petitioner developed various complications and was under treatment till 6. 3. 1999 and during her ailment it was practically impossible for the petitioner to attend to even court work. After his wife recovered from ailment, the petitioner came to know about the ex parte decree and immediately filed an application for setting aside the same on 8. 3. 1999. Along with the application for setting aside the ex parte decree, a petition was also filed for condonation of delay in filing the aforesaid application.

( 3 ) THE learned Civil Judge (Senior Division) disbelieved the statement of the petitioner that he was not in a position to attend to the court work since on some occasions the petitioner had appeared before the learned S. D. J. M. , Bhanjanagar, as well as in the Court of the Civil Judge (Senior Division) and rejected the prayer for setting aside the ex parte decree. The appeal filed by the petitioner was' also dismissed on the very same ground.

( 4 ) THE learned counsel for the petitioner submitted that there is no dispute about illness of the wife of the petitioner and there is also no dispute that the petitioner was the only adult male member who could look after his wife. Merely because the petitioner had to attend some Courts during the period of ailment of his wife, cannot be a ground to disbelieve the entire statement of the petitioner that he could not file the written statement in time due to illness of his wife. On the other hand, learned counsel appearing for the Bank submitted that both the Courts having found the petitioner negligent in filing written statement in time, this Court should not disturb the concurrent findings of fact in exercise of the revisional jurisdiction. He further argued that since the petitioner had in fact attended the Court of the S. D. J. M. , bhanjanagar, during the period on some occasions, it cannot be said that the petitioner was not at all in a position to attend the Court work.

( 5 ) FROM the pleading of the parties and the orders passed by both the Courts below it is very clear that there is no dispute with regard to claim of the petitioner so far as it relates to ailment of his wife. There is no dispute that during the period of ailment the petitioner could attend the Court of the S. D. J. M. , Bhanjanagar, as well as the Court of the learned Civil Judge (Senior Division), Bhanjanagar, only when urgency arose. Therefore, it is clear that the petitioner was not regularly attending the Court due to ailment of his wife and only in case of urgency he was coming to Court. Both the Courts below should have considered this aspect of the matter and should not have disbelieved the plea of the petitioner just because he attended some Courts on some occasions during the said period.

( 6 ) SO far as exercise of jurisdiction under Section 115 of the code of Civil Procedure is concerned, reference may be made to a