HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No.4936 OF 2009 ORDER: The petitioners are defendants in O.S. No.76 of 2007 in the Court of the Additional Senior Civil Judge, Kurnool. The suit was filed by the respondents herein for the relief of partition and separate possession of the suit schedule properties. A n ex parte preliminary decree was passed on 25-01-2008. The petitioners filed an application under Order – IX Rule – 19 CPC with a prayer to set aside the ex parte decree. Since, there was delay of 254 days, they filed I.A. No.931 of 2008 under Section 5 of the Limitation Act, 1963 (for short ‘the Act’). The application was opposed by the respondents. The trial Court dismissed the application through order, dated 24-07-2009. The same is challenged in this CRP. 2. Sri T. Kumar Babu, learned counsel for the petitioners, submits that the suit was posted on 25-01-2008 for cross-examination of PW-1 and on account of the financial constraint, the petitioners could not arrange for appearance of their advocate on that day. He contends that even if there was any default on the part of the petitioners to cross-examine PW-1, the Court, at the most, could have observed that there is no cross examination of PW-1 and ought to have required the respondents to adduce further evidence. Learned counsel submits that in a suit for partition, the Court cannot treat the plaintiffs and defendants are just pitted against each other, and the issue has to dealt with in a comprehensive manner. Learned counsel further submits that the delay in filing the I.A. was on account of lack of financial resources to the petitioners. 3. The record discloses that the notice was sent to the respondents 1 to 5, but they have not entered appearance. Learned counsel for the petitioner states that he personally served notice upon the counsel for the respondents. The revision is pending for the past more than one year and stay is also operating. The respondents are deemed to have been served with notice in the CRP. 4. The suit filed by the respondents was for the relief of partition and separate possession. On receiving notices in the suit, the petitioners engaged an advocate. However, it appears that on account of non-payment of fees by the petitioners, their advocate did not take further steps. PW-1 filed an affidavit in lieu of his chief-examination on 27-11-2007 and thereafter, it was posted for his cross-examination on 18-12-2007 and 25-01-2008. Assuming that there was default on the part of the petitioners to cross-examine PW-1, the trail Court ought to have required the respondents to take further steps. Whatever be the justification for the trial Court to decree other suits, ex parte on account of the default on the part of the petitioners, in a suit for partition, it has to satisfy itself, about the legality and correctness of the claim made by the plaintiffs. In such suits, many a time, some of the defendants would support the claim of the plaintiffs and thereby, it looses adversarial character, to certain account. 5. After the trial Court passed a preliminary decree in the suit, the petitioner filed an application under Order – IX Rule 13 CPC and since there was delay, an application under Section 5 of the Act was filed. Petitioners pleaded the grounds of their financial constraint as well as communication gap between themselves and the advocate. Except opposing the application, the respondents were not able to demonstrate that the plea raised by the petitioner is untenable. It is not as if the matter was dodged for the years together after the trial was commenced. This Court is of the view that the delay is properly explained. 6. Hence, the Civil Revision Petition is allowed and consequently I.A. No.931 of 2008 is also allowed. Time and again, this Court and the Supreme Court held that the grounds that weigh with the Court for condonation of delay in filing an application to set aside the ex parte decree, would hold good for the disposal of the I.A. under Order – IX Rule –13 CPC also. Hence, the ex parte preliminary decree dated 25-01-2008 is set aside and the trial Court shall proceed with the trial of the suit. There shall be no order as to costs. ____________________ L. NARASIMHA REDDY, J January 19, 2011. KTL