IN THE HIGH COURT JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.3750 of 2011 Between: Cherukuru Sampoornamma and others … Petitioners and Cherukuru Lakshmikanthamma and others … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.3750 of 2011 ORDER: This revision petition has been filed aggrieved by the order dated 28.06.2011 passed in I.A. No.60 of 2011 in O.S. No.29 of 2003 by the learned Senior Civil Judge, Gudur. The revision petitioners are the defendants and the respondents are the plaintiffs in O.S. No.29 of 2003. (For the purpose of convenience, the parties hereinafter referred to as ‘the plaintiffs and the defendants’). Brief facts of the case are that the plaintiffs filed suit against the defendants for partition. Written statement has been filed by the defendants and the case is posted for trial. As there was no representation on behalf of the defendants, they were set ex parte and later on ex parte decree was passed on 03.04.2008. Thereafter, on behalf of the defendants, filed I.A. No.60 of 2011 under Section 5 of the Limitation Act and the said application was dismissed on the ground that the defendants have not explained the delay. Aggrieved by the same, the defendants filed the present revision petition. The learned counsel for the revision petitioners, defendants, would submit that the plaintiffs filed suit for partition and the Court below had passed an ex parte order and later on ex parte decree against the defendants, about which, the defendants are not aware and there is no communication between the counsel on record on behalf of the defendants and he had not intimated the same to them. Therefore, there is delay of 1044 days in filing the application. He also submitted that the Court below ought to have condoned the delay at least on payment of costs but the same has been dismissed. Therefore, the order passed by the Court below is erroneous. On the other hand, the learned counsel appearing for the respondents, plaintiffs, would submit that they have filed suit for partition in the year 2003 but the defendants, on one ground or the other, dragging on the matter. After filing the written statement and framing the issues, the matter underwent several adjournments for want of presence of the defendants. As there was no representation on behalf of the defendants, the Court below passed ex parte order and later on ex parte decree against the defendants on 03.04.2008. Even after passing the ex parte decree, the defendants have not taken any steps to file necessary petition seeking to set aside the ex parte decree, within the time stipulated but delayed the matter only with a view to dragon the matter. He further submitted that the learned trial Court, having regard to the facts and circumstances of the case, has rightly dismissed the application. Therefore, there are no merits in the case. Ultimately, he submitted that in the event of allowing the revision petition, the Court below may be directed to dispose of the suit, expeditiously, preferably, within a period of six months, having regard to the year of the suit. Heard the learned counsel on either side and perused the material on record. The point that arises for consideration is that as to whether the order passed by the Court below suffers from any legal infirmity? Admittedly, the plaintiffs filed suit for partition and after filing the written statement by the defendants and framing the issues by the Court below, the matter was posted for trial. At this juncture, there was no representation on behalf of the defendants therefore, they were set ex parte and passed decree accordingly. After passing the ex parte decree, the defendants did not file any application under Order XIII Rule 9 CPC, seeking to set aside the ex parte decree, within the time stipulated, but filed the said application with delay petition, under Section 5 of the Limitation Act, seeking to condone the delay of 1044 days in filing the petition to set aside the ex parte decree dated 03.04.2008 on the ground that in the year 2010, on receipt fo summons, they went to their previous counsel on record where they came to know that the counsel on record has shifted his residence to Nellore and therefore, they have engaged another counsel and got filed Vakalat in I.A. No.565 of 2009, which was filed by the plaintiffs for passing of the final decree, who informed that the petition is for final decree for partition of the preliminary decree dated 03.04.2008. It was the contention of the defendants that they are illiterate and residing in remote village and unable to meet their counsel to know the stage of the case and they have no single piece of paper regarding the suit. Therefore, their another counsel informed them that they were set ex parte in the above case on 03.04.2008 as they have not conducted the cross examination of the witnesses of the plaintiffs. After knowing the same, they filed counter in I.A. No.565 of 2009 on 18.01.2011 and also filed I.A. No.60 of 2011, seeking to condone the delay. Counter filed by the plaintiffs in condone delay petition stating that the delay is not explained properly. Two situations have been mentioned i.e., firstly, that the defendants engaged a counsel, who has not given any communication to them about the stage of the case, in that process, they were set ex parte and thereafter, ex parte decree was passed then secondly, when the plaintiffs filed an application in I.A. No.565 of 2009 for passing the final decree wherin the Court below had issued notice to the defendants, through which they came to know about the stage of the case, and engaged another counsel, as stated hereinabove, Under those circumstances only, the delay is caused. It is contended in the instant case that apart from the ground that they are illiterate they have also taken the ground that they are residing in a remote village but the Court below, except considering the aspect of illiterate, did not consider the facts and circumstances explained in the affidavit, filed in support of the delay petition. From the above, all it is a case where the defendants have assigned the situation and just because of the laches on the part of the counsel, the parties shall not suffer, which aspect has not been considered by the Court below. But, however, being the parties to the suit, ignorance of law is no excuse and the parties are expected pursue the matter in the Court of law, if not regularly but occasionally. In the instant case, the defendants have neglected in pursuing the matter thereby, there was inordinate delay caused, for which, no proper explanation is explained. But, however, having regard to the lis between the parties, as it is a suit for partition of the suit schedule property and the written statement had already been filed and issues were framed and the case was posted for trial and it was the stage where the defendants counsel had to cross examine the witnesses of the plaintiffs, at this stage, there was no representation on behalf of the defendants to cross examine the witnesses of the plaintiffs. Therefore, the Court below had passed the ex parte order and later on ex parte decree against the defendants. When the plaintiffs have filed an application for passing final decree, in which the Court below had issued notice, through which the defendants came to know about it and thereafter started pursuing the matter. Under those circumstances, this Court is of the opinion that having regard to the lis between the parties, when parties claim right over the immovable property, it is always appropriate to adjudicate the matter on merits rather than allowing them to claim right based on the ex parte decree. In that view of the matter, the order dated 28.06.2011 passed in I.A. No.60 of 2011 in O.S. No.29 of 2003 by the learned Senior Civil Judge, Gudur, is set aside and the application filed seeking to condone the delay is allowed on payment of Rs.5,000/- (Rupees five thousand only) to be paid to the counsel to the plaintiffs, respondents herein, within two weeks from today. Further, as both the counsel submitted that the parties to the suit will extend their cooperation in completing the proceedings before the Court below, having regard to the year of the suit, the Court below is directed to complete the proceedings, within a period of six months, from the date of receipt of a copy of this order. Accordingly, this revision petition is allowed. ________________________ JUSTICE G.CHANDRAIAH Date: 14.10.2011 LSK