HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 24-06-2010 C.R.P. No.4504 of 2008 Between: Bandaru Prakasa Rao. …Petitioner. And: Bade Gowrunaidu. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.4504 of 2008 ORDER: Petitioner is defendant in O.S.No.325 of 2006. An exparte decree was passed against him on 4-2-2008. The petitioner has filed application in I.A.No.171 of 2008 seeking condonation of delay of 19 days under order 9 Rule 13 C.P.C. He has also filed separate application in I.A.No.155 of 2007 under order 9 Rule 13 C.P.C. to set aside the decree and under the impugned order, the Court below has dismissed the application in I.A.No.171 of 2008 and consequently, the petitioner’s application to set aside the exparte decree also stood dismissed. 2. Heard the both sides. 3. Learned counsel for the petitioner states that the petitioner was out of station and he had to go over to Hyderabad and his counsel did not attend the case which resulted in exparte decree. Along with C.R.P., the petitioner has filed the document which is a certificate of participation given to the petitioner that he participated in 17th International Leprosy Congress at Hyderabad between 30th January, to 4th February, 2008. The learned counsel states that it is for this reason that he had to be in Hyderabad and was not present at Bobbili when the suit came to be decreed exparte against him on 4-2- 2008. 4. Learned counsel for the respondent further submits that the affidavit filed in support of the application aforesaid did not mention the aspect of International Leprosy Congress etc., as mentioned by the petitioner in this C.R.P. nor any document is produced in support of the petition averments. Learned counsel has also drawn the attention of this court to the detailed counter affidavit filed before the Court below wherein it was pointed out that number of opportunities were given to the petitioner to enable him to file Written Statement, to recall the plaintiff and cross-examine P.W.1, but he failed to avail the said opportunities and costs imposed was not paid as neither the petitioner was present nor his counsel was present. Ultimately, the Court was left with no other option except to set the petitioner exparte and passed the decree exparte on 4-2-2008. Learned counsel states that I.A.No.155 of 2007 was already filed and as such, there is no merit in the C.R.P. 5. I have considered the contentions on either side. 6. It is no doubt true that the petitioner was given several opportunities by the trial Court and it also appears from the narration of the events as mentioned in the respondent’s counter that the petitioner and his counsel were testing the patience of the trial Court and that of the respondent-plaintiff. In any case, from the point of view of not taking into consideration the past conduct for the purpose of adjudicating on the sufficient cause now shown, I am of the view that the delay of 19 days sought to be condoned, has not been properly appreciated by the Court below. The Court below accordingly was not inclined to extend any further opportunity to the petitioner. 7. Both the counsel submit that pending C.R.P., by order dated 24-10-2008, this Court had directed interim stay of further proceedings on condition of the petitioner depositing 1/4th of the suit amount within a period of six weeks and the said order having been compiled with, the respondent has also withdrawn the said 1/4th amount. Keeping over all circumstances in consideration, therefore, not withstanding the past conduct of the petitioner, I feel, in the interest of justice, one more opportunity deserves to be granted to the petitioner however subject to the terms as mentioned below. 8. This Civil Revision Petition is allowed and consequently, the impugned order is set aside subject to the following conditions: (1) The petitioner shall pay costs of Rs.3,000/- (Rupees three thousand only) to the respondent or deposit to the credit of the suit within a period of 4 weeks from today; (2) The petitioner shall report ready for participation before the trial Court for any date which the trial Court fixes after compliance with the condition of deposit; (3) On the date so fixed by the trial Court, the petitioner shall complete the cross-examination of P.W.1 (4) The trial Court shall thereupon proceed with the trial of the suit in accordance with law and in the event of any non-co- operation of the petitioner, thereafter the trial Court shall be at liberty to proceed further in the matter and dispose of the suit on the basis of the material produced before it. (5) Since self same sufficient cause is also mentioned in support of the petition under Order 9 Rule 13 C.P.C. with the consent of both the learned counsel, I deem it appropriate to allow the application filed under order 9 Rule 13 C.P.C. also and consequently, the decree dated 4-2-2008 shall stand set aside subject to the conditions as above. However, it is made clear that in the event of default in compliance, the opportunity granted to the petitioner shall stand withdrawn and exparte decree shall revive. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 24-06-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.4504 of 2008 Dated 24-06-2010