ORDER

1. This civil revision under section 115 of C.P.C. has been filed against order dated 26.7.2019 passed .by Seventh Additional District Judge, Shivpuri in MJC No.26/2018 by which an application filed by respondents No.1 and 2 for condonation of delay in filing the appeal has been allowed and the delay has been condoned.

2. It is submitted by counsel for petitioner that petitioner had filed a suit and respondents No.1 and 2 did not appear in the said suit. The suit was filed for declaration of title and permanent injunction. Since, respondents No.1 and 2 were avoiding the service of notice, therefore, they were served by a substituted mode of service by publication. Even thereafter respondents No.1 and 2 did not appear and accordingly, an ex-parte decree was passed. Thereafter, an application under Order 9 rule 13 of C.P.C. alongwith under section 5 of Limitation Act was filed, which was dismissed by the trial Court.

3. Being aggrieved by the said order, respondents No.1 and 2 filed an appeal alongwith an application under section 5 of Limitation Act. In the appeal a stand was taken that since, their lawyer had not communicated the result/fate of application, therefore, they could not obtain certified copy of the same and could not file the appeal within a period of limitation.

4. By the impugned order, the application filed under section 5 of Limitation Act has been allowed and delay in filing the miscellaneous appeal has been condoned and a direction was given to register a miscellaneous appeal.

5. Challenging the order passed by the Court below, it is submitted by counsel for petitioner that it is true that every attempt should be made to decide the dispute on merits, but the defendant should not be allowed to take advantage of aforementioned proposition of law in order to frustrate the legitimate rights of litigants. It is submitted that earlier the respondents No.1 and 2 did not appear in the suit filed by petitioner. Thereafter, they were served by substituted mode of service by publication. Even then, they did not appear. The application for setting aside ex-parte decree was also filed belatedly and the reasons assigned by respondents No.1 and 2 were not found to be satisfactory and even said application was rejected as barred by time.

6. So far as the delay in filing the miscellaneous appeal under Order 43 rule 1 of C.P.C. is concerned, it is submitted that only ground which was taken by respondents was that so far as the paper publication of civil suit is concerned, they are illiterate ladies and are not in a position to read out the news-paper and so far as the rejection of application filed under Order 9 rule 13 of C.P.C. is concerned, it was the stand of respondents No.1 and 2 that since, they were not informed by their counsel, therefore, they could not obtain the certified copy within specified time. It is submitted that both the grounds are frivolous. Respondents No.1 and 2 have not approached the Bar Council alleging professional misconduct by their earlier counsel. Unless and until professional misconduct is adjudicated by Bar Council, the ground taken by respondents No.1 and 2 with regard to non-communication of result/fate of their application filed under Order 9 rule 13 of C.P.C. is misconceived and false.

7. Per contra, this revision is vehemently opposed by counsel for respondents No.1 and 2. It is submitted that every attempt should be made to decide litigation on merits. An ex-parte decree has been passed and the respondents No.1 and 2 should not be made to suffer only on account of mistake of their counsel.

8. Heard the learned counsel for the parties.

9. So far as the defence taken by respondents No.1 and 2 that they were not informed by their counsel about the fate/result of application is concerned, the same cannot be accepted because it is not the case of respondents No.1 and 2 that they ever tried to contact their counsel to find out the fate of their application.

10. This Court in the case of L