JUDGMENT : P.K. Misra, J. - Defendant No. 3 has filed this Civil Revision against the concurrent orders passed by the courts below refusing to set aside an ex parte decree passed against the defendants in a suit for title and confirmation of possession/ recovery of possession filed by present opposite party No. 1 and two others. 2. The suit was-posted for hearing on 24-7-19%. Even though the defendants had filed written statement, they were absent on the said date and their application for adjournment having been rejected, the suit was taken up for ex parte bearing on the same day and ultimately, the ex parte decree was passed on 3-8-1996. Subsequently, on 26-2-1997, the present petitioner and opposite party No. 2 filed art application under Order 9, Rule 13, Code of Civil Procedure, for setting aside the ex parte decree on the ground that due to their illness on the date of hearing, they could not attend the court. A separate petition u/s 5 of the Limitation Act was filed wherein it was stated that due to prolonged illness of the two petitioners, the petition under Order 9, Rule 13 could not be filed in time. The aforesaid applications were resisted by the present plaintiff-opposite party No: 1. Before the trial court, the petitioners had examined themselves and the doctor who had treated petitioner No. 1 was also examined as a witness. The plaintiff had adduced her own rebuttal evidence. The trial court held that though the petitioner No. 1 was ill on the date of hearing and there was sufficient cause for his non-appearance, no material had been shown to indicate about the illness of petitioner No. 2 and as such there was no sufficient cause for: non-appearance of petitioner No. 2. 3. In appeal filed by the present petitioner and opposite party No. 2, the appellate court was inclined to accept the stand of petitioner No. 2 that he was prevented from attending the court on the date fixed as he was suffering from Asthma. However, the appellate court observed that no sufficient explanation had been furnished for condoning the delay in filing the petition under Order 9, Rule 13, Code of Civil Procedure, which had been filed about five months beyond the period of limitation. The appellate court observed as follows : "......The only explanation offered by p. ws. However, the appellate court observed that no sufficient explanation had been furnished for condoning the delay in filing the petition under Order 9, Rule 13, Code of Civil Procedure, which had been filed about five months beyond the period of limitation. The appellate court observed as follows : "......The only explanation offered by p. ws. 1 and 2 is that they were not aware of the ex parte order and only on 22-2-1997 when the present respondent declared in the village that she has obtained ex parte order, then only they could know about the ex parte decree. The learned lower court has not accepted this explanation as sufficient cause to condone the delay u/s. 5 of the Limitation Act ......" The appellate court ultimately agreed with the observation of the trial court and held :-- ''......The statement of the petitioners that they had not known the ex parte decree and could know about it only on 22-2-1997 from the decree-holder when she declared in the village, cannot be accepted as a sufficient cause for the purpose of condoning delay u/s, 5 of the Limitation Act. ......." 4. Learned counsel for the petitioner has submitted that when it was found that there was sufficient cause for non- appearance of both the defendants on the date of hearing, the courts below should have considered liberally the petition u/s 5 of the Limitation Act and set aside the ex parte decree after condoning the delay. It is further submitted that the courts below have misconstrued the real cause shown by the defendants and thus committed material irregularity in exercise of their jurisdiction. 5. In the petition u/s 5 of the Limitation Act filed along with the application under Order 9, Rule 13, Code of Civil Procedure, it had been stated : -- "2. That the suit was posted on dt. 24-7-96 for hearing and on the date fixed the petitioner No. 1 was suffering from "Bacillary Dysentery" and was treated by the Medical Officer, M. A. C., Beheramal who had also advised the petitioner No. 1 for complete bed test and the petitioner No. 1 could not recover his health since dt. 23-7-96 for six months and was unable to attend the court, for which he could not file the petition for set aside ex parte decree earlier. 3. 23-7-96 for six months and was unable to attend the court, for which he could not file the petition for set aside ex parte decree earlier. 3. That, the petitioner No. 2 is also a regular 'Asthma' patient and he could not file the petition for set aside ex parte decree earlier due to his prolong illness". A perusal of the petition makes it clear that the petitioners had explained that they could not file the petition for setting aside the ex parte decree earlier due to prolonged illness of petitioner No. 1 and the continued suffering of petitioner No. 2 who was an Asthma patient. Both the petitioners had been examined in the proceeding under Order 9, Rule 13, Code of Civil Procedure. Petitioner No. 1 examined as p. w. 1 stated in paragraph-3, "..... I could recover from my illness after about 6 (six) months ....." while petitioner No. 2 examined as p. w. 2 stated in paragraph-3, "I am suffering from chronic Asthma since about 6 to 7 years back". Thus from the petition u/s 5 of the Limitation Act as well as from the evidence, it is apparent that both the petitioners had stated about their prolonged illness. Unfortunately, however, both the courts below have not adverted to such assertion in the petition as well as the statement on oath in deposition. On the other hand, both the courts have proceeded on the assumption that the only cause shown relating to condonation of delay was regarding the lack of knowledge of the petitioners about the ex parte decree. Since both the courts below have proceeded on a wrong assumption regarding the cause shown and have not discussed all the relevant evidence on record, it is obvious that they have exercised jurisdiction with material irregularity and as such, the orders passed by both the courts below refusing to condone the delay and rejecting the application under Order 9, Rule 13, Code of Civil Procedure, cannot be sustained. Since the lower appellate court found that sufficient cause had been shown for non-appearance on the date of hearing and delay in filing the petition under Order 9, Rule 13 is now found to be sufficiently explained, in the interest of justice, the ex parte decree is required to be set aside and the suit should be taken up for fresh disposal on merit. Since the plaintiff-opposite party is likely to be harassed as she has to face a prolonged litigation, in fitness of things, it is directed that the order relating to setting aside the ex parte decree is subject to condition that a sum of Rs. 500/- (Five hundred) should be paid as cost to the plaintiff-opposite party No. 1. Such cost shall be paid to the plaintiff 6r deposited in the trial court on or before 14th May, 2001. If the cost is not paid or deposited as directed, the ex parte decree shall be deemed to have been confirmed. The parties are directed to appear on 14th May, 2001, on which date the trial court after being satisfied about the compliance of the present order shall fix a date for hearing and shall try to dispose of the suit as expeditiously as possible, preferably within a period of six months from the said date. The L.C. R. be sent back immediately. 6. The Civil Revision is allowed subject to the aforesaid direction. 7. Civil revision allowed. Final Result : Allowed