Judicial discretion in condoning delay must favor substantial justice over rigid adherence to timelines, though sufficient cause for delay must be demonstrated.

ORDER :

Narsing Rao Nandikonda, J.

Heard Sri Prabhakar Peri, learned counsel for the revision petitioner and Sri Karri Murali Krishna, learned counsel for the respondent Nos.1 and 2 in the revision petition.

2. Since, both the Civil Revision Petitions arising out of the same suit i.e., I.A.No.442 of 2012 in O.S.No.24 of 2008 and I.A.No.441 of 2012 in I.A.No.341 of 2011 in O.S.No.24 of 2008 on the file of learned I-Additional District Judge, Nalgonda OS No.24 of 2008, they are being disposed of by this Common order.

3. Both the interlocutory applications i.e., I.A.No.442 of 2012 and I.A.No.441 of 2012 and were filed under Section 5 of the Limitation Act, 1963, wherein I.A.No.442 of 2012 was seeking condonation of delay of 501 days in filing the petition for setting aside the ex parte preliminary decree, dated 31.08.2010 I.A.No.441 of 2012 is filed for condonation of 63 days delay in filing petition for setting aside the ex parte final decree dated 11.11.2011. Though both revisions are filed against the orders passed in both the interim applications, the contents of the petitions in both the cases are one and the same and can be dealt with together.

4. Brief facts of the case are that the petitioner herein filed the Interim Applications under Section 5 of Limitation Act, 1963, on the ground that the petitioner could not contest the final decree proceedings as they were not served with the notice in the said proceedings, as such, the trial Court passed an ex parte decree dated 11.11.2011 and order for sale of the suit schedule property for recovering the amount due to respondent Nos.1/plaintiff.

5. Learned counsel for the petitioner contended that on 03.02.2012, the respondents herein have affixed paper ex parte decree copy on the wall of the suit schedule property and the petitioner herein came to know about the passing of ex parte decree order on 09.02.2012 through his servant working in his poultry farm, thereafter, he enquired with his counsel and on perusal of the record he came to know that an ex parte decree was passed as well as the final decree.

6. Since the time for setting aside the ex parte decree is taken from the date of knowledge, i.e., 09.02.2012, which is within 30 days, but as the written statement was already filed, for filing a petition for setting aside the decree from the date of 09.02.2012 and after deducting 30 days, the actual delay caused is 501 days.

7. Learned counsel for the petitioner contended that the petitioner purchased the property for valuable consideration after verifying the revenue records, other connected, however, no notice were served upon the petitioner about the case proceedings, thereby the petitioner failed to contest the suit which was neither willful nor negligent, but due to the above said reasons of non- service of summons and notices in the above proceedings, the petitioner could not contest the matter. It is further contended that as they have shifted their residence to Hyderabad in the year 2009 and since then they are residing in Hyderabad city, as such service of notice got published in newspaper and even shifting of address by the defendant was also known to the respondent No.1 inspite of that they have furnished the wrong old address and obtained the ex parte decree.

8. Before the trial Court, learned counsel for the respondents filed a counter and submitted that initially the respondent No.1/plaintiff filed I.A.No.1418/2008 to implead the petitioners/D-3 and D-4 and in the above proceedings the summons were received by the petitioners/D-3 and D-4 at the same address which is now being disputed by the petitioner