THE HON’BLE SRI JUSTICE VILAS V. AFZALPURKAR CIVIL REVISION PETITION No. 3381 of 2009. ORDER: This revision is directed against the order dt. 8.5.2009 in I.A.No. 1185 of 2008 in O.S.No. 47 of 2007 on the file of the learned Principal Junior Civil Judge, Tirupathi whereby the learned Junior Civil Judge dismissed the application filed by the petitioner under Section 5 of the Limitation Act to condone the delay of 342 days in filing the petition to set aside the ex parte decree. The petitioner had stated in the affidavit filed in support of the application seeking to condone the delay that though he received summons in the suit, as there was a settlement between the parties before the village elders and based on the said settlement, he did not participate in the proceedings. Later, when the petitioner received summons in final decree proceedings in I.A.No. 198 of 2008, the petitioner approached the court below for setting aside the ex parte decree together with the application seeking condonation of delay. The court below dismissed the said application on the ground that there is no material in support of the averments made in the affidavit with regard to settlement between the parties before the village elders. As against the said order, the present revision is filed. Heard the learned Counsel for both the parties. The learned Counsel for the petitioner submits that the parties are brothers and sisters and there is no reason for the petitioner not to participate in the suit proceedings but for the settlement, which was effected among the parties by the village elders. As observed by the court below, there is no material in support of the said claim. However, keeping in view of the fact that the parties are brothers and sisters and the suit is one for partition, I am of the view that an opportunity should be given to the petitioner to contest the suit. I am also persuaded to set aside the ex parte decree dt. 9.7.2007 since the ex parte judgement is not supported by any reasons and the judgement was passed only basing on the evidence of Pw.1 and Exs:A.1 to A.6. The Supreme Court in Balraj Teneja vs. Sunil Madan[1] held that even ex parte judgment must contain adequate reasons and a decree cannot be passed in an ex parte suit when there are serious disputed question of fact involved between the parties. The Supreme Court while dealing with Order 8 Rule 10 held as under: “As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court’s satisfaction and, therefore, only on being satisfied that there is no fact, which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression ‘the Court may, in its discretion, require any such fact to be proved’ used in sub-rule (2) of Rule 5 of Order 8, or the expression ‘may make such order in relation to the suit as it thinks fit’ used in Rule 10 of Order 8.” In view of the decision of the Supreme Court cited supra and taking into consideration the totality of the circumstances of the case, I am of the view that the petitioner is entitled to be given an opportunity to participate in the suit by filing written statement and also by leading evidence in support of his claim. However, since the petitioner filed the petition seeking to set aside the ex parte decree with a delay of 342 days, he is guilty of negligent attitude and therefore it would appropriate that the said application can be allowed by imposing certain terms. The petitioner shall pay a sum of Rs. 2,000/- (Rs two thousand only) towards costs and shall also file written statement and documents in support thereof within six weeks from today and shall co-operate in the trial. The trial court is directed to dispose of the suit as expeditiously as possible. The petitioner shall pay the costs of Rs. 2,000/- either to the defendants or to the counsel for the defendants, within two weeks from today. The Civil Revision Petition is accordingly allowed. There shall be no order as to costs. ______________________________ VILAS V.AFZALPURKAR,J 1.4.2010. Note: Issue CC in one week. B/o. Krb. THE HON’BLE SRI JUSTICE VILAS V. AFZALPURKAR CIVIL REVISION PETITION No. 3381 of 2009. Dt. 01.04.2010. [1] AIR 1999 Supreme Court 3381.