IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.4537 of 2009 Between: Kokkirametla Ramachandrarao. … Petitioner And Nedilla Kasilu. … Respondent This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.4537 of 2009 ORDER: - Petitioner/plaintiff filed this revision on dismissal of I.A.No.3 of 2008 in O.S.No.27 of 2006 filed under Section 5 of the Limitation Act for condoning the delay in filing the petition for restoration of the suit, by the Junior Civil Judge, Prathipadu, East Gopdavari, Kakinada. Petitioner/plaintiff instituted the above suit for specific performance of agreement of sale, dated 15.06.1985 in which the defendant was set ex parte and it was posted for his evidence. Since the petitioner was not present on 04.06.2006 to lead his evidence, the same was adjourned to 04.07.2006 and on the said date, as the petitioner was absent, the suit was dismissed for default. On dismissal of the suit, petitioner filed a petition under Order IX Rule 9 of the Civil Procedure Code (for short, “C.P.C.”) for restoration of the suit and since there is a delay of 417 days in filing the same, the above I.A. came to be filed for condoning the delay. Since the petitioner is aged 66 years and was residing at Hyderabad and taking treatment for his old age ailments, he could not contact his Advocate and later he came to know about the disposal of the suit. Hence, the delay in filing the restoration petition should be condoned. Nodoubt each day’s delay has not been explained nor any certificate of the doctor was filed in proof of the ailments. The lower court dismissed the I.A. holding that even when the I.A. is taken up for hearing, after taking number of adjournments from 30.06.2008, the arguments were advanced and hence, the plaintiff is not diligent even in prosecuting the same Heard Sri N.Siva Reddy, learned counsel for the petitioner and Sri M.S.Ramachandra Rao, learned counsel for the respondent. The learned counsel for the respondent though contended that the agreement is of the year 1985 and the suit as such itself was filed 11 years after the agreement and diligent in prosecuting the suit. But in the plaint, it is categorically asserted that the plaintiff was in possession and enjoyment of the property since the time of the agreement. In view of the same, the plaintiff demanded the defendant to execute the sale deed in terms of the sale agreement. But the defendant has not come forward. Hence the above suit was filed in which the defendant was set ex parte and he has not even contested the said averments. Therefore, I do not see any merit in the contention advanced by the learned counsel for the respondent that the suit as such is barred by limitation. It was next contended by the learned counsel for the respondent that since he was set ex parte and even if the suit is restored, the same will be proceeded in ex parte. Hence, he May be permitted to file an application for setting aside the ex parte order along with the written statement. For that, the learned counsel for the petitioner expressed no objection. In view of the same, since the substantial rights of the parties are involved, the plaintiff should be given an opportunity to contest the suit on merits. Accordingly, the impugned order passed by the lower court is set aside and I.A. filed for condoning the delay in filing the petition under Order IX Rule 9 of the C.P.C. is also allowed. Consequently, the I.A. under Order IX Rule 9 of the C.P.C. for setting aside dismissal of suit for default is also allowed restoring the suit to its file, on respondent filing an application along with the written statement within 30 days from the date of receipt of copy of this order and on filing of such written statement, the lower court should pass appropriate order for setting aside ex parte order against defendant and proceed with the suit after framing necessary issues. Accordingly, the civil revision petition is allowed with the above direction. No order as to costs. ___________________ (A.GOPAL REDDY, J) 20.11.2009. Lmv