THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5397 of 2010 Date:08th March, 2011 Between: 1. The Director of School Education, Government of A.P., Nampally, Hyderabad & Ors. ..... Petitioners/Defendants AND A.Govinda Reddy .....Respondent/Plaintiff *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5397 of 2010 ORDER: This Civil Revision Petition is directed against the order, dated 19.04.2010, passed in I.A.No.1692 of 2009 in O.S.No.7807 of 2007 on the file of III Junior Civil Judge, City Civil Court, Hyderabad, whereby and whereunder the learned Junior Civil Judge dismissed the application filed by the defendants under Section 5 of the Limitation Act to condone the delay of 368 days in filing the petition under Order 9, Rule 13 CPC to set aside the ex parte decree passed in O.S.No.7807 of 2007. 2. The respondent herein is the plaintiff in O.S.No.7807 of 2007. He filed the suit for declaration that his date of birth is 01.01.1080. According to him, his date of birth has been wrongly mentioned in Upper Primary School, Ippalapally village, Thimmajipet Mandal as 01.01.1976 instead of 01.01.1980. He pursued Intermediate course during the years 1993-95; Graduation during the years 1995-1998, Post-Graduation during the years 1998-2001 and law course during the years 2004-2007. The relief sought for in the plaint reads as hereunder: “Therefore, it is humbly prayed that this Hon’ble Court may be pleased to pass judgment and decree as under: i) To declare that the correct date of birth is 01.01.1980 instead of 01.01.1976 as per Mandal Parishad Primary School records and birth certificate issued by the Hospital. ii) To direct the defendant No.1 to issue to the defendants No.2 and 3 to make re-corrections in the date of birth of the plaintiff as 01.01.1980 instead of 01.01.1976 in his all School records enabling the plaintiff to continue his further education and consequently make all corrections in the all his educational records. iii) Award costs of the suits. iv) And to pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” The defendants entered appearance on 07.01.2008. Consequent on failure to file written statement, the defendants came to be set ex parte on 15.04.2008. The plaintiff got himself examined as PW.1 and marked 12 documents as Exs.A1 to A12. The learned Junior Civil Judge decreed the suit on 09.07.2008. The judgment passed by the learned Junior Civil Judge reads as hereunder: “Affidavit of PW.1 is filed and records Exs.A1 to A12 are marked. Heard the plaintiff’s counsel and perused the record. From the affidavit of PW.1 and Exs.A1 to A12 which remained unchallenged by the defendants, the plaintiff’s claim is proved. In the result, the suit is decreed U/O.8, R.10 CPC as prayed for and without costs.” The defendants filed petition under Order 9, Rule 13 CPC to set aside the ex parte decree. They also moved I.A.No.1692 of 2009 under Section 5 of the Limitation Act to condone the delay of 368 days. One H.Narender Rao has sworn to the affidavit filed in support of the delay condonation petition. It is stated in the affidavit that the brief has been entrusted to the counsel on record and the junior attached to the counsel on record stopped working with him and thereby the dates of posting of the suit were not brought to his notice. It is further stated in the affidavit that in the year 2008, one A.Diwakar Reddy was in-charge of the legal section, who used to look after the court matters, and he was transferred to other section and as such it was not brought to the notice of the concerned persons and thereby written statement could not be filed within time. Paras.4 and 5 of the affidavit filed in support of the delay condonation petition need to be noted and they are thus: “I submit that recently in the month of July, 2009 while searching for other files the suit O.S.No.7807 of 2007 located along with other files in other section. On verifying the same it came to knowledge that the office has not filed the written statement in O.S.No.7807 of 2007. Immediately, we contacted the counsel. After verifying the A-dairy, counsel informed the office that suit was decreed ex parte on 09.07.2008. Defendants were set ex parte on 15.04.2008 for not filing written statement as statutory period for filing the written statement was lapsed. He also informed that the said fact was not brought to his notice as his junior advocate who was working with him at that time, has stopped working for him and the same was not carried out in the advocate Dairy, therefore, the track of the suit was lost. 5. It is submitted that in the year 2008, one Mr.A.Divakar Reddy was in charge of legal section, who used to look after the affairs of court files. It is submitted that he was transferred to other section. As such, it was not brought to the notice of the office about the non filing of the written statement. In the month of February, 2009, Mr.Osman Bin Ahmed is given charge of the court files and, on the information given by him, the office came to know the written statement in the above suit is not filed. On transfer of A.Divakar Reddy to other section, the office lost the track of the suit.” The plaintiff filed counter resisting the application. The learned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application on the ground that the petitioner failed to offer reasonable explanation for condoning the delay in filing the petition to set aside the ex parte decree, by order dated 19.04.2010. Hence, this revision. 3. Heard learned Government Pleader for Arbitration appearing for the petitioners and Mr.A.Govinda Reddy, party in person-respondent. 4. Learned Government Pleader for Arbitration appearing for the petitioners submits that the petitioners could not notice the dates of the suit for filing the written statement in the suit as the junior counsel of the advocate on record left the office. A further submission has been made that one A.Divakar Reddy, who was in-charge of the legal section has been transferred to some other section and thereby, the track of the suit has been lost. He would also submit that had the date of birth of the respondent/plaintiff is taken as 01.01.1980, he would be ineligible to appear for the 10th Class examination in the year 1993 and therefore, various aspects are required to be adjudicated before granting the relief to the plaintiff as sought for by him in the suit. 5. Respondent/plaintiff submits that the petitioners/ defendants knew very well about the proceedings in the suit and for the reasons best known to them, they did not choose to file the written statement in the suit and consequently, they were set ex parte on 15.04.2008 and thereafter an ex parte decree came to be passed on 09.07.2008. 6. Indisputably, the respondent/plaintiff sought for correction of the date of birth from 01.01.1976 to 01.01.1980. By the date of his appearing for the 10th Class examination in the year 1993, he would be 13 years, if his date of birth was 01.01.1980. Therefore, he would be under aged in the year 1993. However, these are the aspects which are required to be gone into in the trial of the suit. 7. The guiding principle for delay condonation petition is that justice should not be sacrificed on the alter of technicalities, but at the same time, the Court should not lose sight of the statutory requirement of existence of sufficient cause and condone the delay on equitable grounds. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. – vide the judgment of the Supreme Court in N.Balakrishnan v. M.Krishnamurthy[1]. The proposition of law laid i n N.Balakrishnan’s case has been quoted with the approval in M.k.Prasad v. P.Arumugam’s case[2]. 8. The petitioner offered twin reasons for not filing the written statement within time. Firstly, the junior advocate of the counsel on record left his office; Secondly, A.Divakar Reddy, who was incharge of the legal section, has been transferred to some other section. Keeping in view the explanation offered by the petitioners and the nature of the relief sought for by the plaintiff in the suit, I am of the view that the delay of 368 days deserves to be condoned on certain equitable grounds. 9. Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 19.04.2010, passed in I.A.No.1692 of 2009 in O.S.No.7807 of 2007 on the file of III Junior Civil Judge, City Civil Courts, Hyderabad, subject to the following conditions: 1) The petitioners shall pay costs of Rs.5,000/- (Rupees Five Thousand only) within four weeks from today; 2) The petitioners shall file the written statement in the suit within four weeks from today; Failing compliance of any of the above two conditions, the order impugned in the revision shall hold good. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:08th March, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5397 of 2010 Date:08th March, 2011 [1] (1998) 7 SCC 123 [2] AIR 2001 S.C. 2497