The main legal point established in the judgment is the requirement to show sufficient cause for condonation of delay under Section 5 of the Limitation Act.

ORDER :

1. Heard learned counsel for the petitioner as well as learned counsel for the respondent. Perused the material available on record.

2. Challenge in this Civil Revision Petition is the order rendered by the Court of Senior Civil Judge, Nagarkurnoool, Mahabubnagar District, in I.A.No.390 of 2014 in O.S.No.119 of 2013, dated 22.12.2014.

3. I.A.No.390 of 2014 was filed by the revision petitioner, who is the defendant to the suit, under Section 5 of the Limitation Act, seeking the Court to condone the delay of 107 days in filing application to set aside the exparte decree dated 17.02.2014 in O.S.No.119 of 2013. The request was dishonoured and the said application was dismissed vide order dated 22.12.2014. Aggrieved by the same, the revision petitioner is before this Court.

4. Arguing at length in respect of the merits of the case, learned counsel for the revision petitioner submits that the suit was filed by the respondent/plaintiff for specific performance of the contract of sale and on receipt of summons, the revision petitioner appeared before the trial Court and also engaged an Advocate to defend him. But, subsequently, he left to Hyderabad for eking out his livelihood and thereafter he fell ill and, therefore, he could not contact his counsel and file written statement. Learned counsel for the petitioner submits that in the light of non-filing of the written statement, the suit was heard exparte and was decreed on 17.02.2014. On learning about passing of exparte decree, the petitioner filed an application to set aside the said exparte decree and as there was a delay of 107 days in filing the said application, he filed another application under Section 5 of the Limitation Act to condone the said delay. But without condoning the said delay, the application was dismissed vide order dated 22.12.2014. Aggrieved by the said order, the petitioner has approached this Court.

5. Learned counsel for the revision petitioner also states that when sufficient cause is shown, it is incumbent on the part of the Court to condone the delay, but it was not done. The learned counsel further submits that any irregularity in conducting the case on the part of the Advocate should not affect the interest of the party and, therefore, the delay ought to have been condoned by the trial Court. In this regard, learned counsel for the petitioner relied upon a decision rendered by this Court in a case between MALLARAM SANJEEVA GOUD AND OTHERS v. P. BHIKSHAPATHI AND OTHERS, [2019 (6) ALD 336(TS)], wherein the learned Judge at para-18 of the order made the following observations:

“18. It is settled law that parties engage Advocate and rely on the Advocate to take care of their interests. If they are not properly advised by the Advocate and when they immediately approach the Court within the stipulated period of limitation, the Court cannot dismiss the said application on the ground that petitioners should prove willful negligence on the part of their earlier Counsel on record.”

Further, making a submission that when sufficient cause is shown, the delay should be condoned, the learned counsel relied upon a decision of the Hon’ble Supreme Court in a case between M.K. PRASAD v. P. ARUMUGAM, [(2001)6SCC176], wherein the Hon’ble Apex Court at para-7 of the order held as follows:

“7. In any case in which a decree is passed ex-parte, the defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the