THE HON’BLE SRI JUSTICE V. ESWARAIAH CIVIL REVISION PETITION No.3131 of 2007 Date: 18.11.2010 Between: Smt. Oleti Suguna … Petitioner and Oleti Chandrasekhar … Respondent THE HON’BLE SRI JUSTICE V. ESWARAIAH CIVIL REVISION PETITION No.3131 of 2007 ORDER : Heard learned counsel for the petitioner as well as learned counsel for the respondent. 2. This Civil Revision Petition is directed against the order, dated 30.4.2007, in I.A.No.51 of 2007 in I.A.No.257 of 2005 in O.S.No.61 of 2003, passed by the Family Court Judge, Visakhapatnam, in dismissing the application filed under Section 5 of the Limitation Act to condone the delay of 100 days in filing petition under Order 9 Rule 9 of C.P.C., to set aside the default order, dated 31.8.2006, in I.A.No.257 of 2005. 3. The petitioner is the wife of the respondent and their marriage was performed on 24.5.2001. The husband filed suit O.S.No.61 of 2003 on the file of the Judge, Family Court, Visakhapatnam, to declare their marriage as null and void. The said suit was decreed exparte on 3.12.2003 on the ground that the wife refused to receive notice sent through registered post as well as through the Court. The wife filed I.A.No.257 of 2006 under Order 9 Rule 13 of C.P.C., seeking to set aside the exparte decree, dated 3.12.2003, alleging that she came to know about passing of the said exparte decree only when she made a complaint before the police. When the said I.A.No.257 of 2006 was posted for enquiry on 31.8.2006, neither the wife nor her counsel could appear before the Court below on the ground that she was attacked with malaria and jaundice and has been taking treatment in M.P.H.C., Deverapalli, West Godavari District, and she could not inform about her sickness to her counsel. Therefore, for non-appearance of the wife, the said I.A. was dismissed for default on 31.8.2006. She filed an application to set aside the dismissed for default order, dated 31.8.2006. However, there is a delay of 100 days in filing the petition to set aside the default order. Therefore, she filed the present application I.A.No.51 of 2007 in I.A.No.257 of 2005 in O.S.No.61 of 2003, to condone the delay of 100 days in filing the application to set aside the default order on the ground of her illness. The Court below dismissed the said application I.A.No.51 of 2007 on the ground that the wife has not filed any medical certificate to show that she was suffering from malaria and jaundice from 10.8.2006 and the very fact that she filed M.C.No.61 of 2006 in October, 2006 shows that she is hale and healthy during the said period. Hence the present civil revision petition. 4. It is the contention of the learned counsel for the petitioner-wife that as per the doctor certificate, dated 29.12.2006, though the petitioner-wife has taken treatment from 25.8.2006 to 10.9.2006, she was advised to take bed rest for two months, therefore, she could not file the application to set aside the default order. It is his further contention that the wife was not able to move from the bed and go from West Godavari to Visakhapatnam to prosecute the matter during the months of November and December, 2006 and thus there was a delay of 100 days in filing the application to set aside the default order. 5. On the other hand, it is the contention of the learned counsel for the respondent-husband that having filed maintenance case in M.C.No.61 of 2006 on 26.10.2006 on the file of the Magistrate Court, Kovvur, West Godavari District, there cannot be any justification for the wife in contending that she was unable to move from the bed. 6. No doubt, the petitioner-wife filed M.C.No.61 of 2006 against the respondent-husband on 26.10.2006. The said maintenance case was filed in her native place at West Godavari District, whereas the divorce petition in O.S.No.61 of 2003 was filed by the husband at Visakhapatnam. Though, it is the contention of the learned counsel for the respondent-husband that there was no proper explanation for the delay during the months of November and December, 2006, the petitioner-wife filed a doctor certificate, dated 29.12.2006, before this Court, which was taken on record, which reveals that she was suffering from fever and jaundice and was taking treatment at P.H.C., Deverapalli, West Godavari District, during the period from 25.8.2006 to 10.9.2006 and advised to take two months bed rest. Therefore, it cannot be said that she was not diligent in prosecuting the case. However, as the matter relates to matrimonial dispute and the petitioner-wife was a native of West Godavari District, and the husband was living at Visakhapatnam, the delay in filing the application to set aside the default order cannot be said to be unreasonable. Therefore, the delay of 100 days in filing the application to set aside the default order is liable to be condoned. 7. Accordingly, the civil revision petition is allowed, at the stage of admission, setting aside the impugned order, dated 30.4.2007, in I.A.No.51 of 2007 in I.A.No.257 of 2005 in O.S.No.61 of 2003, passed by the Court below and I.A.No.51 of 2007 stands allowed subject to condition of the petitioner-wife paying a sum of Rs.1,000/- (Rupees one thousand only) to the District Legal Services Authority, Visakhapatnam District, within a period of two weeks from the date of receipt of a copy of this order. The Court below may consider to dispose of I.A.No.257 of 2005, expeditiously, in accordance with law. There shall be no order as to costs. _________________________ JUSTICE V. ESWARAIAH 18.11.2010. Msr THE HON’BLE SRI JUSTICE V. ESWARAIAH CIVIL REVISION PETITION No.3131 of 2007 18.11.2010 (Msr)