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2004 DIGILAW 622 (AP)

Reddy Lakshmi Kantham v. V. Satyanarayana

2004-06-29

L.NARASIMHA REDDY

body2004
( 1 ) THIS C. R. P. , is filed against the order, dated 18-6-2003, passedby the Court of Junior civil Judge, Salur, Vizayanagaram District, in LA. No. 231 of 2002 in O. S. No. 82 of 1999. ( 2 ) THE respondent filed the suit against the petitioner for recovery of certain amount on the strength of a promissory note. On receiving the summons in the suit, the petitioner engaged an advocate and filed written statement. The trial of the suit commenced and P. W. I was examined. At that stage, the petitioner did not participate in the proceedings. Hence, she was set ex parte, on 5-2-2001, and thereafter, an ex parte decree was passed, on 13-2-2001. Respondents also filed E. P. No. 12 of 2002. On receipt of notice in the E. P. , the petitioner filed an application under Order 9 Rule 13 cpc, to set aside the ex parte decree. Since there was delay of 377 days, the petitioner filed LA. No. 231 of 2002 under Section 5 of the Limitation Act. The same was dismissed by the trial Court. Hence, this revision. ( 3 ) LEARNED counsel for the petitioner submits that the petitioner is 70 years old, residing at Tanuku, in East Godavari District. Whereas the respondent filed the suit, obviously, at the behest of the son of the petitioner at Salur, on the basis of a forged and fabricated pronote. He contends that the petitioner hereself had to initiate several proceedings to claim maintenance against her son, and despite the same, as soon as she received summons in the suit, she engaged an advocate and filed written statement. He also contends that the non-participation of the petitioner in the proceedings in February, 2001, was on account of lack of information from the counsel for the petitioner. He ultimately contended that the delay ought to have been condoned. ( 4 ) LEARNED counsel for the respondent, on the other hand, submits that the petitioner was provided with number of opportunities to participate in the trial, and despite the same, she has remained ex parte. He submits that the trial Court was left with no alternative, and even the delay of 377 days is not properly explained. ( 5 ) THE suit filed against the petitioner was decreed ex parte on 13-2-2001. He submits that the trial Court was left with no alternative, and even the delay of 377 days is not properly explained. ( 5 ) THE suit filed against the petitioner was decreed ex parte on 13-2-2001. The petitioner contends that on account of her old age, she is unable to move to any place, and despite the same, she engaged an advocate and filed a written statement after receiving the notice in the suit. This aspect is in fact borne out by record. The contention of the petitioner that she did not receive any information from her counsel, thereafter, remains unrebutted. The trial Court referred to number of decisions to the effect that the failure on the part of a counsel cannot be a ground to set aside the ex parte decree. Whatever be the strength of such a view, the fact remains that an old lady of 70 years cannot be penalized on account of any lapse on the part of her advocate to keep her informed about the proceedings in the suit. ( 6 ) THERE would have been justification in rejecting the application, if the petitioner remained indifferent ever since she received summons in the suit. As observed earlier, the petitioner not only engaged an advocate but also filed the written statement promptly. Her non-prosecution was on account of the lack of information from her counsel. The age of the petitioner and the distance between her place of residence and the place of the court, which is about 300 kilometers, cannot be ignored. ( 7 ) HAVING regard to the facts and circumstances of the case, the C. R. P. is allowed and the delay in filing the application under Order 9 Rule 13 CPC, is condoned. To avoid further complications, it is directed that the I. A. filed under Order 9 Rule 13 CPC, shall also stand allowed and that the suit be restored to file. Since, the written statement was already filed and P. W. I was examined, the trial Court shall proceed with the suit and dispose it of, within a period of two months from the date of receipt of a copy of this order. Any lapse on the part of the petitioner herein shall invariably entail in an ex parte decree.