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2004 DIGILAW 143 (AP)

Nalla Lalchaiah v. Abdul Razak

2004-02-06

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) RESPONDENTS herein filed O. S. No. 13 of 1985 in the Court of Subordinate Judge, bhongir for the relief of declaration of title, recovery of possession and payment of mesne profits in respect of the suit schedule property against the petitioners herein. ( 2 ) A written statement was filed on behalf of the petitioners. The trial of the suit commenced. P. W. 1 was examined in chief as well as in cross. At that stage, the 1st petitioner who is said to have been entrusted with the task of pursuing the matter is alleged to have suffered a paralytic stroke on 15. 1. 90. He is said to have undergone treatment till 2. 4. 1992. Obviously because there were no instructions, counsel for the petitioners herein reported no instructions. The trial Court proceeded to adjudicate and decide the matter and ultimately decreed the suit on 25. 6. 1990. Subsequently, other petitioners verified the developments and on coming to know that the suit was decreed, they filed an application under oder IX Rule 13 C. P. C. to set aside the ex-parte decree. Since there was delay in filing the application, they filed I. A. No. 145 of 1992 under Section 5 of the Limitation Act to condone the delay of 745 days. The trial Court rejected the I. A. through its order dated 11. 9. 1997. Hence, this revision. ( 3 ) LEARNED counsel for the petitioners submits that the petitioners herein have exhibited proper diligence in prosecuting the proceedings by filing the written statement as well as by cross-examining P. W. 1. It is stated that non-participation in the proceedings was on account of the paralytic stroke suffered by the 1st petitioner who was authorized to look after the matter. He contends that once the counsel for the petitioners therein has reported no instructions, it was obligatory on the part of the trial Court to issue notices to the petitioners herein and that the trial Court had committed an illegality in proceeding to deliver the judgment without hearing the petitioners and without setting them ex-parte. Learned counsel also submits that while considering the application to condone the delay, the trial Court did not assign any reason whatsoever, though, a specific plea was raised and supporting material was placed before it. ( 4 ) THE revision petition was presented on 8. 12. Learned counsel also submits that while considering the application to condone the delay, the trial Court did not assign any reason whatsoever, though, a specific plea was raised and supporting material was placed before it. ( 4 ) THE revision petition was presented on 8. 12. 1997. It could not be proceeded with on account of certain office objections as well as death of some of the parties in the meanwhile. The notices issued by this Court in C. R. P. were served on the respondents on 24. 1. 2003. They have not chosen to appear in person or through Advocate. Hence, this Court is constrained to decide the matter. ( 5 ) THE subject matter of this C. R. P. is the order passed by the trial Court in I. A. No. 145/92, filed under Section 5 of the Limitation Act. In the affidavit filed in support of the I. A. , it was pleaded that the 1st petitioner was authorized to look after the progress of the suit and on account of the paralytic stroke suffered by him on 151. 1990, communication gap came to exist. The circumstances under which the rest of the petitioners could not instruct their counsel are also stated. The respondents have resisted the claim of the petitioners. Section 5 of the Limitation Act enables the Courts to condone the delay in presentation of the applications beyond the periods of limitation prescribed under the relevant provisions of law, in case satisfactory reasons are furnished by the parties. It is ultimately the satisfaction of the Court, that matters. The approach in the matters of setting aside ex-parte decrees has always been to condone delay as far as possible, if semblance of genuine reasons are forthcoming. The object is to ensure that the parties get adjudication of the matter on merits. Either for condoning the delay or for refusing to condone the delay, the Court is under obligation to record reasons. After referring to the contentions raised on behalf of the petitioners and the respondents in the I. A. , the trial court said nothing more than this. "after perusal of the record and taking into the consideration of the case, I do not find any merits in condoning the delay of 745 days in fling the present application. Therefore, the petition is dismissed. "after perusal of the record and taking into the consideration of the case, I do not find any merits in condoning the delay of 745 days in fling the present application. Therefore, the petition is dismissed. " ( 6 ) THIS can hardly be said to be the type of adjudication expected of a Court, while dealing with applications of condonation of delay. The obligation on the court to furnish reasons in support of the allegation becomes more important, having regard to the fact that refusal to condone the delay would add finality to the decree passed ex-parte. ( 7 ) REVERTING to the contentions raised on behalf of the petitioners as regards the legality of the Judgment and decree in the suit, it needs to be observed that the counsel for the petitioners therein has reported no instructions at one stage of the proceedings. This is evident from the Judgment itself. The trial court recorded the same, but, did not choose to set the defendants ex-parte. On the other hand, it has proceeded to decide the matter on merits. It has not chosen to issue notices to the parties herein after the learned counsel has reported no instructions. Such a course of action is impermissible in law. In malkiat SNGH AND ANOTHER vs. JOGINDER SINGH and OTHERS, the Supreme Court held that where the counsel for one of the parties reports no instructions, it is obligatory on the part of the Court to issue notices to the concerned party. Failure to issue such notices was held to be fatal and the decree passed without complying with such a requirement was set aside. The judgment of the Supreme court squarely applies to the facts of this case also. ( 8 ) VIEWED from any angle, the approach of the Court below, be it while decreeing the Suit or dismissing the application filed under Section 5 of the Limitation act to condone the delay in filing I. A. under Order IX Rule 13 C. P. C. , cannot be sustained. Hence, the Civil Revision Petition is allowed. Consequently, the i. A. No. 145 of 1992 shall also stand allowed. Hence, the Civil Revision Petition is allowed. Consequently, the i. A. No. 145 of 1992 shall also stand allowed. ( 9 ) TIME and again, this Court held that once the delay in presenting the application under Order 9 Rule 12 of C. P. C. is condoned, ordering application filed under Order 9 Rule 13 of C. P. C. is a matter of course. It has also come on record that the ex-parte decree passed by the trial Court is contrary to the judgment of the Supreme Court, referred to above. Therefore, to avoid further delay and complications in the matter, the ex-parte decree dated 25. 6. 1990 is also set aside. The trial Court is directed to proceed with the trial of the matter after issuing notices to the parties.