THE HONOURABLE SRI JUSTICE K.LAKSHMAN CIVIL REVISION PETITION No.2463 OF 2023

O R D E R

Heard Sri Rudresh Deshpande, learned counsel for the petitioner-defendant and Sri Sanjeev Gillela, learned counsel for respondent No.1-plaintiff. Respondent No.2 is not necessary party to this Civil Revision Petition.

02. This Civil Revision Petition is filed by the petitioner-defendant aggrieved by the impugned Order dated 03.02.2023 passed in I.A.No.817 of 2022 in O.S.No.347 of 2019 by the learned Principal Senior Civil Judge, Hanumakonda.

03. First respondent filed a suit in O.S.No.347 of 2019 against the petitioner and second respondent seeking recovery of an amount of Rs.6,34,333/- along with interest. In the said suit, the petitioner-defendant No.1 has entered her appearance and filed written statement on 26.10.2022. Thereafter, she was set exparte. The said suit was decreed on 28.02.2022 by learned Principal Senior Civil Judge, Hanumakonda.

04. Thereafter, first respondent herein had filed Execution Petition vide E.P.No.30 of 2022. At that stage, the petitioner had filed I.A.No.817 of 2022 in O.S.No.347 of 2019 under Section 5 of the Limitation Act to condone the delay of 210 days in filing the application to set aside the exparte decree on the following grounds:

i. She entered appearance on

04.02.2022.

ii. Lockdown was imposed in view of the Covid-19 and she could not follow up the suit proceedings. However, she had filed written statement.

iii. She was not appraised about subsequent proceedings by her counsel and she has received notices in E.P.No.30 of 2022 and came to know about the aforesaid exparte decree.

iv. The said execution petition was transferred from one Court to another.

v. Non-filing of application to set aside the exparte decree is neither willful nor wanton.

05. The said application was opposed by the respondent-plaintiff contending that despite granting ample opportunity, the petitioner herein failed to participate in the proceedings and did not contest the same. Several adjournments were granted. The petitioner-defendant No.1 even did not represent through her lawyer. Therefore, the trial Court set her exparte and passed decree.

06. Vide impugned Order dated 03.02.2023, the Court below dismissed the said Interlocutory Application holding that the contention of the petitioner-defendant No.1 that suit was transferred from one Court to another. Despite filing written statement, she failed to pursue the suit. She has not explained the cause for delay in filing an application to set aside the exparte decree.

07. Aforesaid facts would reveal that the first respondent herein had filed aforesaid suit against the petitioner-defendant No.1 and respondent No.2-defendant No.2 for recovery of an amount of Rs.6,34,333/-. She had entered her appearance and filed written statement denying the claim made by the petitioner. However, having filed the written statement, she did not pursue the said suit proceedings. Therefore, she was set exparte on 28.02.2022. Therefore, she has filed an Interlocutory Application in I.A.No.817 of 2022 in O.S.No.347 of 2019 to condone the delay of 210 days in filing the application to set aside the exparte decree specifically contending that she has engaged a lawyer and lockdown was imposed during Covid-19 Pandemic. She was not appraised of day-to-day proceedings of the suit by her Advocate. There is no dispute that she was negligent in pursuing the suit proceedings. She cannot expect her lawyer to appraise the day-to-day suit proceedings. It is for the petitioner-defendant No.1 to follow the suit proceedings through her counsel, which she failed to do so.

08. However, the said suit was filed for recovery of money and it is to be decided strictly in accordance with law by giving due opportunity to the petitioner, which was not given to the petitioner. Trial court decreed the suit holding that defendant No.1 did not deny the evidence let in by the plaintiff. Even an exparte order should be on merits.

09. At the cost