HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISON PETITION No. 2624 OF 2007 Thursday, the Twenty Third Day of December, Two Thousand and Ten Between Snapala Jeevan Kumar Petitioner AND Smt. Sanapala Manimala and others Respondents ORAL ORDER: Though notice is served on the contesting respondents 1 and 2, none appears. The petitioner is husband of the first respondent and father of the second respondent. The respondents 1 and 2 filed OS No. 51 of 2004 for partition of the joint family properties against him and others. Pending disposal of the partition suit, the respondents 1 and 2 filed I.A. No. 140 of 2004 claiming interim maintenance against him and the said application was allowed in his absence on 16.9.2005 granting interim maintenance. It is stated that when the exparte order was passed on 16.9.2005, though he attended the court, he could not present himself as he has gone to his house to attend nature call, thinking that his presence may not be required on that day, as the matter was passed over for want of batta for service of notice on the fourth defendant. But the court below passed an exparte order granting interim maintenance at the rate of Rs.1,000/- in favour of the wife and Rs.500/- in favour of the daughter. Accordingly, he filed the application IA No. 918 of 2005 under Order 9 Rule 13 CPC seeking to set aside the exparte order dated 16.9.2005 passed in IA No. 140 of 2004 in OS No. 51 of 2004. The said IA was dismissed observing that had the allegation that when the matter was called he went to home to answer calls of nature been true, he could have filed the application to set aside the exparte order immediately but the said application was filed after a lapse of eleven days and, therefore, held that there are no grounds to set aside the exparte order. When the provisions require that the said application can be filed within thirty days, I am of the opinion that merely because the application was filed after eleven days of passing the exparte order, it cannot be said that there is a delay. The petitioner is entitled to file such an application within thirty days. The court below is entitled to consider whether the said plea taken by the petitioner stating that he had been to the house to answer calls of nature, thinking that his appearance is not necessary on that day, is genuine or not. However, that being an exparte order, it is just and proper to pass an order on merits in accordance with law. Consequently, the Civil Revision Petition is allowed and the impugned order is set aside and the matter is remitted back to the court below to reconsider the said I.A. No. 918 of 2005 afresh and pass appropriate orders as expeditiously as possible within a period of four weeks from the date of receipt of a copy of this order after hearing both the parties, in accordance with law. No order as to costs. ___________________ Justice V.Eswaraiah December 23, 2010 MAS