THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.5281 of 2009 O R D E R: The Civil Revision Petition is directed against the order in I.A.No.10 of 2008 in O.S.No.80 of 1999 on the file of the Junior Civil Judge, Narsapur, dated 21.10.2008. The 8th defendant in the suit filed the petition for condonation of delay of 620 days in filing the petition to set aside the ex parte decree dated 21.3.2006 and he claimed that the original summons of the suit were served only by way of substituted service against him and respondents 5 to 7, and later the suit was dismissed for default and again restored at the instance of the plaintiffs. The 8th defendant claimed that he was under the impression that the suit was not restored and that the suit was restored to file without serving any notice on him. He also contended that he came to know about the ex parte decree only after receipt of notice in I.A.No.353 of 2007. The plaintiffs resisted the request contending that the 8th defendant and other defendants appeared through a counsel and filed written statement but he did not choose to cross- examine PW.1 in spite of giving number of opportunities and hence it cannot be said that there is any sufficient cause to condone the long delay. The trial Court rendered the impugned order noting that the final decree petition is pending in the matter after passing of the preliminary decree. The trial Court noted that the summons to the 8th defendant were sent by substituted service ie., paper publication and the 8th defendant did not appear after such service. The trial Court further noted that the suit was dismissed for default on 20.4.2005 and was restored as per orders in I.A.No.117 of 2006 but the 8th defendant did not appear after restoration of the suit like other defendants. After setting the defendants ex parte on 21.3.2006, the ex parte decree was passed and when the 8th defendant filed his counter in I.A.No.178 of 2005, filed by the plaintiffs to condone the delay of 88 days in filing the petition for restoration of the suit, he cannot claim that he had no knowledge of the suit. It is only after the counsel for the 8th defendant reported no instructions, he was set ex parte and, therefore, the trial Court felt that the delay cannot be condoned and negatived the petition. The said order is under challenge in this revision contending that the trial Court did not consider the material on record, which disclosed that the 8th defendant could not have knowledge of the suit when he did not receive any summons or notices in the suit or after the restoration of the suit or after the counsel for the 8th defendant reported no instructions. Hence, he desired that the impugned order be reversed. Heard Sri S.Subba Reddy, learned counsel for the petitioner and Sri P.Venkat Reddy, learned counsel for respondents 1 to 3/the plaintiffs. Respondents 4 and 5 were reported dead and respondents 6 to 11 were stated to be not necessary parties to this revision. The learned counsel for the revision petitioner referred to Nagulapu Raju v Tirupathi[1] regarding the approach to be adopted in such cases and it was pointed out that in construing the truth or otherwise of any grounds pleaded in support of the request for condonation of delay, the Court must go by broad human probabilities arising out of the facts and circumstances and not by any rigid or technical approach. The learned counsel also relied on Malkiatsingh v jogindersingh[2], wherein also the counsel for the party reported no instructions before the Court and the Court proceeded to decide the case ex parte against those parties to whom the counsel reported no instructions. Thereafter, the parties came up with a petition to set aside the ex parte decree and the Apex Court noted that the trial Court did not issue any notice to the parties who were admittedly not present on the date when their counsel reported no instructions in the Court and that it was nobody’s case that the counsel informed them after he had reported no instructions to the Court. The claim of the parties that they had no knowledge of the further proceedings or the ex parte decree was accepted following the earlier decision of the Apex Court in Tahil Ram Issardas Sadarangani and others v Ramchand Issardas Sadarangani and another[3], wherein it was laid down that when the counsel withdrew from the case, interests of justice required that a fresh notice for actual date of hearing should have been sent to the parties. The facts and circumstances of the present case are more or less similar to the facts before the Apex Court, wherein the Apex Court concluded the party to be not at fault under such circumstances. Though it is true that the claim of total ignorance about the suit made in the affidavit filed in support of the petition does not appear to be convincing in the face of the 8th defendant filing his counter in I.A.No.178 of 2005 which was filed for condonation of delay in filing a petition for restoration of the suit dismissed for default, obviously the reporting of no instructions by the counsel for the 8th defendant was much later to the condonation of delay in I.A.No.178 of 2005 and the restoration of the suit. It is not the case of anybody that any notice was ordered and served on the 8th defendant, after the counsel reported no instructions, at the instance of the Court or the plaintiffs and it is also not anybody’s case that the counsel who reported no instructions had contacted in any manner the 8th defendant about the step he had taken. When the 8th defendant had no notice of the counsel reporting no instructions, he cannot be attributed with the knowledge of the proceedings leading to the ex parte decree and his claims of ignorance about the steps taken in the suit, therefore, cannot be straight away rejected in the absence of any material. Under the circumstances, the delay has to be condoned on appropriate terms and conditions. As the 8th defendant cannot also be considered to be strictly diligent in watching the progress of the proceedings in the suit, imposition of heavy costs should follow. Therefore, the order in I.A.No.10 of 2008 in O.S.No.80 of 1999 on the file of the Junior Civil Judge, Narsapur dated 21.10.2008 is set aside and I.A.No.10 of 2008 will be allowed on payment of costs of Rs.1200/- to the District Legal Services Authority, Medak at Sangareddy within 15 days from today and in default, the said petition shall stand dismissed. The Civil Revision Petition is ordered accordingly. No costs. _____________________ G.BHAVANI PRASAD,J 2nd July, 2010. PNV [1] 2009(6) ALT 408 [2] AIR 1998 SC 258 [3] AIR 1993 SC 1182