JUDGMENT

A. S. NAIDU, J. — The State of Orissa and its officers who were defendants in Money Suit No.204 of 1989 of the Court of the 2nd Addl.Civil Judge (SD), Cuttack have filed this Miscellaneous Appeal challenging the order dated 4.5.2000 passed by the said Court dismissing a petition filed by them under Section 5 of the Limitation Act accompanying a petition filed under Order 9, Rule 13 CPC and consequently dismissing the petition filed under Order 9, Rule 13 CPC.

2. The respondent as plaintiff had filed the aforesaid Money Suit for realization of damages from the defendant-appellants at the rate of Rs.300.00 per day with effect from 1.4.1988 for their unauthorized occupation of his building in spite of termination of their tenancy from the said date. The defendant-appellants appeared in the suit and filed their written statement.During pendency of the suit the plaintiff-respondent filed a petition with a prayer to amend the plaint, which having been allowed the Court below permitted the defendant-appellants to file their additional written statement, if any. But for reasons best known to the defendant-appellants neither filed any additional written statement nor did contest the suit thereafter. Consequently the suit was decreed ex parte on 10.7.1995.

3. Then in the year 1996 the defendant-appellants filed a petition under Order 9, Rule 13 CPC with a prayer to set aside the ex parte decree. To condone the delay of 535 days in filing the said petition, they filed another petition under Section 5 of the Limitation Act and tried to explain the delay stating that the concerned Government Pleader who was looking after the suit could not inform them about passing of ex parte decree in the suit. They further stated that the concerned Assistant who was in charge of the suit had been transferred during the relevant time and as such the defendant-appellants were not aware of such ex parte decree. They came to know about the ex parte decree for the first time when the same was sought to be executed in E.C. No.199 of 1996 where-after they filed the petition under Order 9, Rule 13 CPC along with a petition under Section 5 of the Limita¬tion Act to condone the delay. In support of their stand, the defendant-appellants got one witness examined. The trial Court disbelieving the plea taken by the defendant-appellants refused to condone the delay and dismissed the petition in that regard as well as the petition for setting aside the ex parte decree.

4. Mr. S. S. Das, learned Addl.Govt.Advocate, reiterating the stand taken by the defendant-appellants submitted that though each day's delay was not explained by the defendant-appellants before the Court below, but then the facts narrated in the peti¬tions and the evidence adduced clearly revealed that there was no deliberate laches on their part and the delay was caused due to certain inadvertent reasons over which they had no control.

5. The submissions of Mr. Das are strongly repudiated by Mr. Ray, learned Senior Advocate appearing for the plaintiff-respondent. He submitted that enough materials are there on record to reveal that the plea taken by the defendant-appellants was a cock and bull story. The defendant-appellants had utterly failed to substantiate their plea by adducing cogent evidence. At the other hand as would be evident from records there was delib¬erate laches on the part of the defendant-appellants in the suit for which the same was decreed ex parte. He further submitted that a delay cannot be condoned for asking and the concerned party has to explain each day’s delay and convince the Court that non-filing of the petition within the prescribed period of limi¬tation was due to reasons beyond his control. In the case at hand, according to Mr. Ray, the defendant-appellants had utterly failed to satisfy the Corut below about their plea and the im¬pugned order being just and proper may not be interfered with by this Court.

6. I have heard learned counsel for the parties at length a