The court emphasized a liberal approach toward condoning delays, prioritizing substantial justice over technicalities.

ORDER

Defendant in the suit filed the above civil revision petition under Article 227 of the Constitution of India against order, dated 30.01.2020 passed in I.A.No.894 of 2019 in O.S.No.213 of 2016 on the file of learned Senior Civil Judge, Sattenapalli.

2. Plaintiffs filed O.S.No.213 of 2016 against the defendant seeking partition of the suit schedule properties.

3. The defendant on receipt of summons got filed vakalat. However, he did not file written statement. Since written statement was not filed within time, defendant was set ex parte on 18.10.2016 and eventually ex parte decree was passed on 02.11.2016. On coming to know the same, petitioner filed I.A.No.894 of 2019 on 09.02.2017 under Section 5 of the Limitation Act to condone the delay of 69 days in filing the application to set aside the ex parte decree, dated 02.11.2016.

4. Along with I.A.No.894 of 2019, petitioner also filed I.A.No.927 of 2019 under Order IX Rule 13 of CPC to set aside the ex parte decree, dated 02.11.2016.

5. In the affidavit filed in support of I.A.No.894 of 2019, it was contended inter alia that the suit stands posted to 18.10.2016 for filing of written statement of the petitioner; that the petitioner could not file written statement, as he was suffering with Jaundice; that when he met his Advocate in February, 2017, he came to know about the decree passed by the trial Court. Hence, petitioner filed I.A.No.894 of 2019 to condone delay of 69 days is filing application to set aside ex parte decree and I.A.No.927 of 2017 to set aside the ex parte decree.

6. Respondents filed counter and opposed the same.

7. Trial Court, by order, dated 30.01.2020, dismissed I.A.No.894 of 2019. Aggrieved by the same, the present revision is filed.

8. Heard both sides.

9. Learned counsel for the petitioner would contend that petitioner has been suffering from Jaundice and hence, he could not contract his counsel resulting in petitioner’s non-filing of written statement. He would further submit that when petitioner met his Advocate, he came to know about the result of the suit. He would submit that since there is delay of 69 days, petitioner filed petition to condone the delay of 69 days in filing petition to set aside the decree, dated 02.11.2016. He would also submit that petitioner explained the reasons for delay. However, trial Court without considering the same, dismissed the application.

10. Learned counsel for respondents, on the other hand, would support order of the trial Court.

11. The point to be considered is whether petitioner has assigned proper and sufficient reasons to condone delay of 69 days in filing an application to set aside the ex parte decree, dated 02.11.2016?

12. Suit O.S.No.213 of 2016 is filed for partition of suit schedule property into four equal shares and for allotment of one such share to each of the plaintiffs with metes and bounds and put them in separate possession of their respective shares and for grant of mense profits.

13. Suit was posted to 18.10.2016 for filing of written statement of the petitioner. However, petitioner could not file written statement within time. Hence, he was set ex parte and eventually preliminary decree was passed on 02.11.2016.

14. As can be seen from the affidavit filed in support of I.A.No.894 of 2019, the contention of the petitioner is that he has been suffering from Jaundice, as such he could not contact his Advocate. Subsequently, when he contacted his Advocate in February, 2017, petitioner came to know about the result of the suit and immediately, he filed present application.

15. Condonation of delay be it shorter period or longer period, petitioner must assign valid and cogent reasons.

16. In N.Balakrishnan Vs. M.Krish