THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 6253 of 2006 Date of order: 29.7.2010 Between: Mohammed Abdul Jaleel …Petitioner and M/s. Sreni Chit Fund (p) Ltd and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 6253 of 2006 ORDER: An application filed by the petitioner/defendant No.3 to restore IA No. 180 of 2005 was dismissed under the impugned order of the IV-Senior Civil Judge, City Civil Court, Hyderabad dated 1.9.2006. The affidavit filed in support of the petition states that an ex parte decree dated 4.8.2004 was passed in the suit and it was sought to be set aside by defendant No.3 on the ground that summons were not received by him either at his official address or residential address. By order of the trial Court dated 8.8.2005 the said application was allowed on condition of payment of costs of Rs.500/- on or before 18.8.2005. However, the petitioner/defendant No.3 did not pay the costs and thereby the trial Court rejected IA No. 180 of 2005 for non-compliance of the condition. Thereafter the petitioner/defendant No.3 has filed the present application on 24.8.2005 being IA No. 683 of 2005 under Order 9, Rule 9 of the Civil Procedure Code for restoration of IA No. 180 of 2005. This application was dismissed under the impugned order, giving rise to the present revision petition. Heard both sides. This Court had granted interim stay on 5.12.2006 while issuing notice before admission and later revision was admitted on 19.1.2007 and interim stay order was directed to be continued. The respondent/decree holder, however, has not moved either a vacate stay petition nor otherwise contested the revision petition, except on this day. It is contended by the learned counsel for the petitioner that though costs were not paid on 18.8.2005, but they were paid on 20.7.2006 and a Xerox copy of the receipt evidencing the same was produced and it is stated that a memo to that effect was already filed before the trial Court. The learned counsel also states that a written statement has been filed on 23.8.2006 and thereby seeks one more opportunity so that the suit itself can be disposed of on merits. The learned counsel points out that the default in complying with the condition imposed in IA No. 180 of 2005 was on account of the petitioner suffering from Malaria fever, due to which he could not prepare the written statement nor could arrange payment of costs. The learned counsel for the respondent/decree holder has vehemently opposed the petitioner’s application by contending that the suit itself was filed as early as on 17.11.2003 and was decreed on 4.8.2004. He states that the petitioner obviously has not filed written statement even after stipulated time of 90 days nor has complied with the condition as to deposit of costs, and no medical certificate having been filed in support of the alleged illness. He submits that the application ought not to be allowed and was rightly dismissed by the Court below. I have considered the aforesaid submissions and it is noteworthy that the petitioner’s application to set aside the ex parte decree being IA No. 180 of 2005 was already allowed by the trial Court on 8.8.2005 and a discretionary was exercised in favour of the petitioner to enable him to contest the suit on merits. It is, however, on account of the alleged illness that the petitioner could not comply with the condition as to payment of costs and that by itself ought not be a ground to deny the petitioner of his right to contest the suit on merits. It is well settled that the provisions of the Civil Procedure Code are intended to sub-serve the substantial justice and not to trip a party for a technical default committed in complying with the condition imposed by the Court. As stated above, since the petitioner claims that he has already paid the costs and filed his written statement, there should not be any impediment for the trial Court to decide the suit on merits, if one opportunity is given to the petitioner. However, the petitioner also cannot be said to be free of any negligence in prosecuting the suit and in order to compensate the respondent-decree holder, it is just and proper to impose additional costs on the petitioner. Accordingly the revision petition is allowed, the impugned order is set aside and additional costs of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) are imposed on the petitioner/defendant No.3 payable to the counsel for respondent/decree holder or deposit to the credit of the suit within two weeks from today. On compliance of the aforesaid condition, the trial court shall grant opportunity to the petitioner/defendant No.3 to contest the suit, hear and decide the suit on merits, in accordance with law, within two months thereafter. No order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 29.7.2010 KR