HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.2827 of 2008 Dt.26.11.2010 Between: Buddala Appa Rao and others ..Petitioners And Datla Krishna Varma and others ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.2827 of 2008 ORDER: Petitioners herein are defendants in the suit O.S.No.199 of 1999 on the file of the Junior Civil Judge, Bheemunipatnam, filed by the 1st respondent. In the said suit ex parte decree was passed on 13.2.2003 and thereafter petitioners filed the application in I.A.No.624 of 2004 under Order IX Rule 13 C.P.C. together with written statement filed on behalf of 1st defendant and adoption memo for other defendants, to condone the delay of 88 days under Section 5 of the Limitation Act. It is stated in the affidavit filed in support of the application that in fact all of them had engaged an advocate and the advocate appeared till September, 2002 and since there was a communication gap between the defendants and their counsel they could not appear on 13.2.2003 and therefore they were set as ex parte and ex parte decree was passed. It is stated that the delay in filing the petition is not wilful or wanton. Counter has been filed opposing the application denying all the averments made in the affidavit. The trial court dismissed the said I.A.No.624 of 2004 filed under Section 5 of the Limitation Act for condonation of delay of 88 days in filing the petition under Order IX Rule 13 C.P.C., on the ground that admittedly the suit summons were served on the defendants in 1999 itself, but no written statement was filed upto 2002 and therefore it cannot be said that the non-appearance of their counsel is not wilful and intentional. It is stated that sufficient cause has not shown explaining the delay of 88 days in filing the application under Order IX Rule 13 C.P.C and accordingly dismissed the said I.A. Having regard to the facts and circumstances of the case, I am of the opinion that there is any amount of negligence on the part of the defendants in filing the written statement and not pursuing the suit upto 2003 and there cannot any justification in filing the written statement. However, I am not inclined to express any opinion with regard to the application filed by them seeking to set aside the ex parte decree. But, however, it is stated that all the defendants are illiterates and the application filed under Section 5 of the Limitation Act to condone the delay is only 88 days in filing the petition to set aside the ex parte decree. Having regard to the facts and circumstances of the case, the said delay is condoned subject to the condition of the petitioners deposit costs of Rs.2,000/- (Rupees two thousand only) to the Visakhapatnam District Legal Services Authority within two weeks from the date of receipt of a copy of this order. The civil revision petition is accordingly allowed. No order as to costs. ________________ V.ESWARAIAH, J. 26.11.2010 kpr