THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 323 of 2008 Judgment: This C.M.A. is directed against the order dated 04.03.2008, passed by the III Additional District Judge, City Civil Court, Hyderabad, dismissing the application in I.A. No. 3483 of 2006 in O.S. No. 407 of 2004, filed by the appellants-defendants praying to set aside the ex parte decree dated 30.10.2006. The respondent-plaintiff filed the suit against the appellants- defendants for specific performance of contract. The appellants- defendants filed their written statement. Thereafter, issues were framed. The respondent-plaintiff filed affidavit in lieu of chief examination on 23.08.2006 and marked documents Exs. A1 to A13. The matter was posted for further evidence on 17.10.2006, and at that point of time, the respondent-plaintiff filed application to re-open and recall P.W.1 for further evidence. The appellants- defendants filed counter thereto on 19.10.2006, but the Court allowed the application on payment of costs of Rs.300/-, making it clear that the respondent-plaintiff will not protract the matter and directed the appellants-defendants to cross-examine P.W.1 on the next date of hearing on 30.10.2006. As the counsel for the appellants-defendants, failed to cross-examine P.W.1 on 30.10.2006, the Court set the appellants-defendants ex parte, and consequently passed ex parte decree. The appellants-defendants praying to set aside the said ex parte decree filed the present application stating that their valuable rights are involved in the property, that appellant No.1-defendant is an old aged lady, that she could not contact the Advocate and could not attend the Court on 30.10.2006 because she fell ill, and that if the ex parte decree is not set aside, they would suffer irreparable loss and injury. Thus while praying to set aside the ex parte decree, they further prayed that they be provided an opportunity to cross-examine the witnesses of the respondent-plaintiff and also adduce their evidence and contest the suit on merits. The respondent-defendant filed counter stating that the counsel for the appellants-defendants filed the present application accompanied by affidavit of appellant No.1-defendants on 31.10.2006, praying to set aside the ex parte decree, but the affidavit is not signed by appellant No.1-defendant. In fact, the present application is not served on the respondent-plaintiff, and the respondent-plaintiff obtained the same by filing copy application. The respondent-plaintiff denied the contention of appellants-defendants that their counsel was ready to cross-examine P.W.1 on that day, and contended that as the appellants-defendants failed to cross-examine P.W.1 and proceed with the matter in spite of providing ample opportunity, the Court passed the ex parte decree on 30.06.2006, and prayed that the present application to set aside the same be dismissed. The Court below considering the rival contentions, by reason of the impugned order, dismissed the present application filed by the appellants-defendants praying to set aside the ex parte decree dated 30.10.2006. Heard the learned counsel for the appellants-defendants and the learned counsel for the respondent-plaintiff and perused the order under appeal. As can be seen from the order under appeal, it appears that though the appellants-defendants filed the present application accompanied with the affidavit of appellant No.1-defendant, the same was not signed by appellant No.1-defendant, but was signed by their counsel. The Court below upon noticing this, called upon appellant No.1-defendan to file fresh affidavit signed by her. Accordingly, she filed her signed affidavit. Though appellant No.1-dfendant contended that she is an old aged lady and that she is suffering from ill-health and due to her illness, she could not attend the Court on 30.10.2006, the fact remains, appellant No.1-defendant did not file any medical certificate to prove her illness. Even assuming appellant No.1- defendant was suffering from illness, the fact remains, the Court below found that the matter was being contested by her son also, who is appellant No.2-defendant, who is also being represented by the same counsel, and nothing prevented appellant No.2-defendant from attending the Court. And it not being the case of appellant No.1- defendant that appellant No.2-defendant is hostile and was sailing with the respondent-plaintiff, the Court below held that old age of appellant No.1-defendant is no ground to set aside the ex parte decree. This apart, though the appellants-defendants claimed that the counsel engaged by them did not prosecute the matter properly, the fact remains, the Court below found that the very same counsel was representing them in the present application also. Be that as it may, the Court below considering the fact that the suit was of the year 2004 and that as in spite of providing sufficient opportunity, the appellants-defendants did not cross-examine P.W.1, and in such circumstances, the Court set the appellants-defendants ex parte and passed the ex parte decree and that merely because the counsel whom the appellants-defendants engaged was busy in another court, is not a ground to set aside the ex parte decree, and that he was required to make necessary arrangements, for representing the matter, refused to set aside the ex parte decree, and accordingly by reason of the order under appeal, dismissed the present application. The order under appeal, passed by the Court below, being a well- reasoned one, as noticed above, we find no reason whatsoever to interfere therewith. The C.M.A. is devoid of merit, and the same is accordingly dismissed. No costs. ________________ N.V. RAMANA, J. _______________________ B. CHANDRA KUMAR, J. Dated: 1st December, 2010 KSR