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2004 DIGILAW 642 (AP)

G. Subba Rao v. S. Ramatheertham

2004-07-05

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS civil revision petition is filed against the order dated 19. 1. 2004 passed by the learned Principal Junior Civil judge, Parchur, in LA. No. 632 of 2003 in o. S. No. 186 of 2000. ( 2 ) THE first respondent filed O. S. No. 186 of 2000 against the petitioners and their father, the second respondent, for the relief of specific performance of an agreement. The summons were served upon the petitioners and Respondent No. 2. They engaged advocates. However, no written statement was filed by them. The Trial Court ultimately passed an ex parte decree on 3. 5. 2002. ( 3 ) THE first respondent filed E. P. No. 24 of 2003 for execution of the decree. After receiving notices in the E. P. the petitioners as well as their father, the second respondent, entered appearance and filed a common counter-affidavit. At that stage, the petitioners filed an application under Order LX, Rule 13 C. P. C. to set aside the ex parte decree. Since there was a delay of 325 days in filing the application, they filed LA. No. 632 of 2003 under Section 5 of the Limitation Act. ( 4 ) IT is the case of the petitioners that the first petitioner was engaged in business at Thiruvur, the second petitioner has been studying post graduation at Nuzvid and the third petitioner was studying graduation at vijayawada. They stated that they were expecting information from their Counsel as regards the progress of the case and since nothing was heard from their advocate, they did not take any steps. It is also their case that they came to know about the ex parte decree only when they received notice in the E. P. The petitioners alleged collusion against their father in filing of the suit as well as the subsequent proceedings. ( 5 ) THE first respondent denied the allegations of the petitioners and stated that the plea of collusion was raised only as an excuse. It was pleaded that the petitioners adopted the counter-affidavit filed by their father, the second respondent in the E. P. and the same discloses that the plea of collusion is without basis. The Trial court ultimately dismissed the LA. , not being satisfied with the explanation offered by the petitioners. It was pleaded that the petitioners adopted the counter-affidavit filed by their father, the second respondent in the E. P. and the same discloses that the plea of collusion is without basis. The Trial court ultimately dismissed the LA. , not being satisfied with the explanation offered by the petitioners. ( 6 ) HEARD learned Counsel for the petitioners and learned Counsel for the respondents. ( 7 ) THE petitioners filed LA. No. 632 of 2003 for condonation of delay of 325 days in presenting the application under order LX, Rule 13 C. P. C. On the face of it, the delay is enormous. It is not as if the petitioners were not served with any summons or that they are ignorant of the court procedure, much less residents of remote inaccessible villages. Admittedly, the first petitioner is a businessman and petitioner Nos. 2 and 3 were students of colleges in Nuzvid and Vijayawada respectively. It cannot be said that on account of their business, or study, as the case may be, the petitioners were totally detached from their native place or that they were inaccessible to their Counsel. Once the petitioners were served with summons and engaged an advocate, they were under obligation to file a written statement. No explanation worth its name is forthcoming as to why they have not chosen to file the written statement. The Trial Court decreed the suit ex parte, after the petitioners entered appearance, and after giving opportunity to them. The record discloses that the matter underwent several adjournments, so much so, that costs were also imposed against the petitioners, for their default in filing the written statement. This also did not yield results. The Trial Court was virtually left with no alternative except to pass an ex parte decree. ( 8 ) THE plea of the petitioners as regards collusion of their father with the first respondent, hardly deserves any consideration. The fact that the petitioners adopted the counter-affidavit filed by their father in the E. P. demonstrates the shallowness of the allegation. ( 9 ) THE first respondent is aged about 70 years. On the basis of the decree, substantial rights have accrued to her. The petitioners alone are responsible for the emergence of an ex parte decree. The fact that the petitioners adopted the counter-affidavit filed by their father in the E. P. demonstrates the shallowness of the allegation. ( 9 ) THE first respondent is aged about 70 years. On the basis of the decree, substantial rights have accrued to her. The petitioners alone are responsible for the emergence of an ex parte decree. The condonation of delay, and setting aside the ex parte decree would result in wiping away the rights which accrued to the first respondent, and subjecting her to a fresh round of litigation at that old age. Viewed from any angle, this Court does not find any basis to interfere with the order under revision. The Trial Court had appreciated the matter from the correct perspective and on the settled principles of law. ( 10 ) HENCE, the civil revision petition is dismissed. No costs.