THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.No.3286 of 2009 25th February, 2011 Between : K.Pandaiah and others .. Petitioners And Smt.Pushpamma and others .. Defendants THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.No.3286 of 2009 ORDER:- This revision is directed against the Order dated 19-6-2009 passed in I.A.No.1512 of 2008 in O.S.No.120 of 2006 on the file of the Senior Civil Judge, Mahabubnagar, whereby and whereunder, the learned Senior Civil Judge dismissed the delay condonation application filed by defendants No.2 to 6. Background facts in nutshell leading to filing of this revision by D.4 to D.6 are:- Respondents No.1 to 3 herein are the plaintiffs in O.S.No.120 of 2006. They filed the suit for partition and separate possession of their 1/6th share each in the suit schedule property. According to them, they are the children of 1st defendant through second wife and whereas defendant No.2 is the son through his first wife and defendant No.3 is the son of defendant No.2. They stated in the plaint that D.4 to D.6 are no way concerned with the suit schedule property and they are trying to occupy the suit schedule property. Defendants No.2 to 6 entered appearance in the suit and subsequently, they failed to file written statement. Thereupon an ex parte preliminary decree came to be granted on 9-10-2007. Defendants No.2 to 6 filed a petition under Order IX Rule 13 of C.P.C. to set aside the ex parte preliminary decree and also moved I.A.No.1512 of 2008 under Section 5 of the Limitation Act to condone the delay of 368 days filing the petition. The 2nd defendant has sworn to the affidavit filed in support of the delay condonation petition. It is stated in the affidavit that the letter written by his Counsel has not reached him and therefore neither he nor other defendants could file the written statement. Paragraphs No.4 and 5 of the affidavit needs to be noted and they are as hereunder:- “That in the above case, myself and other petitioners are engaged Counsel and I used to pursue the case with Counsel. My Counsel asked me to get the documents from the Revenue Department and also from the Sub-registrar Office for preparing the written statement in the suit. Later due to my personal family problems, I could not approached my Counsel as such he did not file the written statement in the suit on our behalf. Thus this Hon’ble Court has passed ex parte decree on 9-10-2007. That in view of the facts, the respondents have no right or claim in the suit properties. As the date of decree was learnt by us only on yesterday when I approached my Counsel at Mahabubnagar. My Counsel informed me that he wrote a post-card to me and the same is returned to him in 2007 and the same is misplaced in his office. Thus myself and other petitioners are filing the petition to set aside the ex parte decree dated 9-10-2007. I was advised that there is a strong case in our favour and we are ready to face the case on merits. Thus, there is a delay of ____ days in filing the petition to set aside the ex parte decree dated 9- 10-2007 passed in O.S.No.120 of 2006. If, the said delay is not condoned in filing the petition to set aside the ex parte decree, the petitioner No.2 and 3 to 5 will be put of the loss and hardship as their valuable rights of property involved in the result of the suit. If the ex parte decree set aside, no prejudice will be caused to the respondents herein and we will proceed with trial of the case day to day, if permitted by this Hon’ble Court. The respondents’ claim in the suit is false one. There is no willful negligence on our part in non- prosecution of the case, but the same was occurred due to the communication gap between counsels and us.” The plaintiffs filed counter resisting the application. Learned Senior Civil Judge, on considering the material brought on record and on hearing the Counsel appearing for the parties, came to the conclusion that the petitioners failed to offer valid reasons for condoning the delay of 368 days in filing the petition to set aside the ex parte decree dated 9-10-2007 and thereby proceeded to dismiss the application. Hence, this revision by D.4 to D.6. Heard learned Counsel appearing for the petitioners/D.4 to D.6 and Counsel appearing for the respondents No.1 to 3 /plaintiffs. Learned Counsel appearing for the petitioners submits that the petitioners are bona fide purchasers of the part of the suit schedule property under registered sale deeds from the 3rd defendant and if the application to condone the delay of 368 days in filing petition to set aside the ex parte decree is not condoned, valuable rights of the petitioners in respect of the property purchased by them under registered sale deed defeated. A further submission has been made that the petitioners trusted the 2nd defendant who has been attending the suit proceedings and ultimately the 2nd defendant has not pursued the matter and allowed the Court to pass ex parte decree. Learned Counsel appearing for the respondents No.1 to 3 – plaintiffs submits that the petitioners have not offered any valid reason to condone the delay of 368 days in filing the petition to set aside the ex parte preliminary decree and the Trial Court has rightly dismissed the application and therefore the order passed by the Trial Court does not warrant interference. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say the discretion can be exercised only if the delay is within certain limits. Length of delay is no matter. Acceptability of the explanation is the only criteria. Pragmatic liberal approach should be made in considering the petition under Section 5 of the Limitation Act. The guiding principle is that justice should not be sacrificed on the alter of technicalities but at the same time the Court should not loose site of the statutory requirement of existence of sufficient cause and condone the delay on equitable grounds. It is the case of the petitioners, who have been arrayed as D.4 to D.6, that they purchased the property from D.3 under registered sale deed. Execution of registered sale deed has not been denied by the 3rd defendant. According to D.3, he got the property by way of gift deed from the 1st defendant. The total extent claimed by the petitioners under various sale deeds is about 10 acres. The substantial rights of the petitioners herein are involved in the suit. In that view of the matter, I am inclined to allow the Civil Revision Petition on certain conditions. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 19-6-2009 passed in I.A.No.1512 of 2008 in O.S.No.120/2006, subject to the following conditions:- 1) The petitioners shall pay Rs.10,000/- (Rs.Ten thousand only) as costs to the plaintiffs within 15 days from today. 2) The petitioners shall file written statement within 15 days from today. _______________________ B.Seshasayana Reddy, J 25th February, 2011 NOTE:- C.C. by 28-2-2011 (B/o.smr/ksp)