IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4997 OF 2008 BETWEEN V. Pedda Ranga Reddy. …PETITIONER AND R. Ganesh Reddy and another. …RESPONDENTS Counsel for the petitioner: MR. M. VENKATA RAMANA REDDY Counsel for the Respondents: MR. MASTHAN NAIDU CHERUKURI The Court made the following: - ORDER: This revision is at the instance of the plaintiff, who is aggrieved by the order of the Court below dated 17.06.2008 under which I.A.No.237 of 2008 was allowed directing the second defendant/respondent No.2 herein to participate in the suit by setting aside the ex parte order passed against her. 2. The contesting respondent – defendant No.2 in the suit was set ex parte on 01.07.2004 in the present suit for injunction. Non-appearance of defendant No.2 and consequential setting her ex parte was sought to be remedied by defendant No.2 by filing the present application I.A.No.237 of 2008 to set aside the ex parte order, supported by an affidavit and a medical certificate that she was suffering from Abdominal pain and hospitalized and later advised complete bed rest. The said reason is put forth to explain her absence on 01.07.2004 and a prayer is made to set aside the ex parte order so as to enable her to file written statement and contest the suit. 3. The petitioner/plaintiff resisted the said application by filing a detailed counter including the contention that as per medical certificate she was suffering from abdominal pain only up to 15.04.2005 but the present application is, however, filed as late as on 19.02.2008. However, the Court below under impugned order has allowed the application of defendant No.2 by imposing condition, as mentioned, in the order. Aggrieved by the same, the present revision is filed. 4. Heard both sides. 5. Mr. M. Venkataramana Reddy, learned counsel for the petitioner has vehemently contended that defendant No.2 is apparently negligent and has not bothered to appear before the Court right from 01.07.2004 and the present application is leisurely moved on 19.02.2008 totally unmindful of Article 137 of the Limitation Act, which prescribes a period of three years for filing an application, which is not otherwise provided in any of the Articles of the Limitation Act. Learned counsel also places reliance on M. KANAKADURGA v. B. KAMESWARI[1] and T. AMMAJI v. CONVENTION OF BAPTIST CHURCHES OF NORTHERN CIRCARS[2] for the proposition that when the party approaches for setting aside an ex parte order he has to satisfy the Court that he was prevented by sufficient cause from appearing on the date fixed for appearance and in the event of the Court being not satisfied by reasons mentioned, the ex parte order cannot be set aside. 6. Learned counsel for the respondent/defendant No.2, on the contrary, contends that in revisional jurisdiction of this Court, the discretion exercised by the Court in setting aside the ex parte order passed against defendant No.2, on the facts and circumstances of the case, does not warrant interference inasmuch as the discretion cannot be said to be perverse or arbitrary. He also submits that an opportunity given to defendant No.2 to contest the proceedings cannot be withdrawn by raising hyper technical objections. 7. The two decisions relied upon by the learned counsel for the petitioner, no doubt, support the proposition, which he wishes to confine. However, on facts, it has to be seen that in both the decisions referred to above, the party, who had approached the Court under Order 9 Rule 7 of the Civil Procedure Code has either received the summons or had otherwise knowledge of the proceedings and in spite of the same it had not come before the Court within the time allowed by law. It is in those circumstances that the Court was not satisfied by the cause shown by the applicants. In the present case, however, the affidavit filed by defendant No.2 specifically states that she was hospitalized from 15.03.2004 to 15.04.2005 and thereafter also as per medical advice she had to take complete bed rest. It is also stated that on 02.02.008 when she met the counsel by engaging to appear in this case on her behalf, she came to know that on 01.07.2004 she has been set ex parte. Thereafter, the present application has been filed on 19.02.2008. The counter affidavit, no doubt, is quite elaborate in denying the affidavit averments. However, the Court below has liberally exercised jurisdiction under Order 9 Rule 7 CPC and by awarding costs and imposing conditions, allowed the said application of defendant No.2. 8. The contention of the learned counsel for the petitioner with regard to Article 137 of the Limitation Act overlooks that the three years period prescribed therein would commence when the right to apply accrues. As per the averments of defendant No.2 in the affidavit she came to know of having been set ex parte only on 02.02.2008. At best, therefore, the right accrued to her only on that date and the application has been filed on 19.02.2008, which cannot be said to be beyond the period prescribed by the said article. 9. Looking at the matter in either of the perspectives, therefore, I am of the view that the impugned order passed by the Court below is justified and warrants no interference in revisional jurisdiction of this Court as it would amount to withdrawing the opportunity given to defendant No.2 to participate in the suit. It is well settled that the provisions of Order 9 Rule 7 CPC have to be liberally construed and it must advance the cause of justice by giving due opportunity to the parties to contest the matter on merits rather than tripping the parties on technicalities. The civil revision petition, therefore, is dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 9, 2010 DSK [1] 1997 (5) ALT 797 [2] 1999 (3) ALT 141