IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYSEVENTH DAY OF OCOTBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2454 of 2011 Between: Pasula Anjaneyulu .. Petitioner AND Smt. Laxmi and 4 others .. Respondents ORDER: The order passed in I.A.No.75 of 2010 in O.S.No.37 of 2007 on the file of the Junior Civil Judge, Atmakur, dated 30-12-2010 is the subject of the present Civil Revision Petition. The 4th defendant in O.S.No.37 of 2007 filed I.A.No.75 of 2010 styling it to be under Order 9 Rule 4 read with Section 151 of the Code of Civil Procedure (for short “CPC") to restore I.A.No.61 of 2009 filed by him for condonation of delay in filing the petition to set aside the ex parte order passed against him. The 4th defendant stated in his affidavit in support of the petition that in I.A.No.61 of 2009, non-payment of batta in time was due to pressure of work of his counsel and the mistake was stated to be accidental but not intentional. The request was opposed by the plaintiffs/respondents 1 and 2 contending that the preliminary decree was passed long back and the Commissioner’s report was also submitted suggesting division of property and I.A.No.104 of 2008 was filed for passing final decree at which time the 4th defendant came up with this petition under Order 9 Rule 4 of CPC for restoration of the petition, along with a petition for condonation of delay, which was dismissed due to non-deposit of process to respondents 3 to 5 therein. The plaintiffs contended that Order 9 Rule 4 of CPC has no application and the Court is entitled to proceed with the matter and hence, the petition for restoration be dismissed. The trial Court passed the impugned order referring to the rival contentions for expressing a considered view that the 4th defendant got knowledge about passing of ex parte decree, but he failed to pay any batta for issuance of notices to the respondents. The trial Court also referred to the precedent cited before it and considered Order 9 Rule 4 CPC to be making it mandatory to satisfy the Court about sufficient cause for non-appearance of the party on the date of hearing. Stating that sufficient cause depends upon the facts and circumstances of each case, the trial Court opined that in the present case, the 4th defendant was given several opportunities, but he failed to utilize them indicating that there is no interest to contest the suit. In the absence of any sufficient cause, the trial Court dismissed the petition. In this Civil Revision Petition, the 4th defendant contends that due to laches of the counsel on record, the 4th defendant could not have been deprived of any remedy and the trial Court erred in holding that Order 9 Rule 4 of CPC does not apply to the petition. The mere wrong mention of provision of law should not negative the relief and hence, the petitioner desired the impugned order to be reversed. Sri G. Purushotham Reddy, learned counsel for the revision petitioner and Sri K. V. Raghuveer, learned counsel for respondents 1 and 2 are heard and respondents 3 to 5 were unrepresented before this Court though served with the notice. The point for consideration is whether the order dismissing I.A.No.75 of 2010 dated 30-12-2010 is liable to be set aside? So far as this enquiry is concerned, the reasons for passing a n ex parte decree in O.S.No.37 of 2007 or the justifiability or maintainability of an application to set aside the ex parte order under Order 9 Rule 13 of the CPC and the justifiability and maintainability of an application under Section 5 of the Limitation Act to condone the delay in filing the petition to set aside the ex parte preliminary decree are not the subject matter and the only question for consideration herein is the justification or otherwise of the petition for setting aside the dismissal order dated 25-06-2010 in I.A.No.61 of 2009 filed under Section 5 of the Limitation Act for condonation of delay in filing the petition to set aside the ex parte preliminary decree. The affidavit in support of the application filed by the 4th defendant specifically attributed the default in payment of batta for service of notices to respondents 3 to 5 to the advocate not paying the batta due to his pressure of work. Whether the mistake was accidental or intentional, the statement on oath by the 4th defendant attributing the default in payment of process to his counsel appears to have the tacit approval of the counsel himself, who filed the petition with his signature. The applicability or otherwise of Order 9 Rule 4 of CPC to a situation of this nature needs no further research in this revision as even in the absence of applicability of a specific provision, the availability of the inherent powers of the Court under Section 151 of CPC to deal with such a situation to advance substantial cause of justice cannot be in doubt. The plaintiffs only referred to the untenability of the contentions of the 4th defendant in the suit itself and the probable untenability of the petition to set aside the ex parte order and to condone the delay in filing the petition to set aside the ex parte order, but not the reasons assigned by the 4th defendant for the non-payment of process resulting in dismissal of I.A.No.61 of 2009. The only other ground on which the plaintiffs opposed the petition is due to the suggested non-applicability of Order 9 Rule 4 of CPC, but the mere wrong mention of provision of law applicable or the inapplicability of a specific provision of the Code of Civil Procedure need not deter the Court from doing justice, if it is otherwise due, by taking recourse to inherent powers under Section 151 of CPC. When the default is stated to be on the part of the counsel, the party need not be ordinarily penalized and in considering the existence of sufficient cause, the trial Court itself had noted that it is a question of fact depending on the facts and circumstances of each case. On the facts and circumstances of this case, the uniform liberal view taken in considering the question of existence of sufficient cause in such events has to be adopted herein also and the restoration of I.A.No.61 of 2009 has to be made subject to appropriate terms to offset the inconvenience caused to the opposite side due to the default of the 4th defendant earlier. Sri G. Purushotham Reddy, learned counsel for the revision petitioner, also brought to notice another relevant factor that respondents 3 to 5 are defendants 1 to 3 in the suit with whom the 4th defendant had no adverse interest concerning the subject matter of the suit, while the plaintiffs had in fact been served with notices, appeared and contested I.A.No.61 of 2009 by filing a counter and therefore, the dismissal of I.A.No.75 of 2010 at any rate could not have been in respect of the respondents 1 and 2. No further opinion need be expressed on this question, except noting that the arguments of the learned counsel in this regard have also sufficient force. Therefore, the order in I.A.No.75 of 2010 in O.S.No.37 of 2007 on the file of the Junior Civil Judge, Atmakur dated 30-12- 2010 is set aside and the said I.A.No.75 of 2010 will be allowed on payment of costs of Rs.500/- (Rupees five hundred only) by the petitioner-4th defendant to the plaintiffs/respondents 1 and 2 herein on or before 28-11-2011. In default, the said I.A.No.75 of 2010 shall stand dismissed. The Civil Revision Petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 27-10-2011 Ksn