THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NO. 5805 OF 2009 Date of Judgment: 29.6.2011 Between: The Narasaraopet Municipality represented by its Commissioner, Narasaraopet …Petitioner and Annapurna Mutually Aided Consumers Cooperative General Stores Ltd., Narasaraopet, ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NO. 5805 OF 2009 ORDER: The petitioner/Municipality/defendant was contesting a suit in O.S.No. 290 of 2007 pending before Additional Senior Civil Judge, Narasaraopet filed by the respondent/plaintiff. In the said suit an exparte decree was passed on 15.12.2008. The petitioner/defendant, therefore, made an application before the trial court to set aside the said exparte decree together with an application for condonation of delay of 29 days in filing the said application. The application for condonation of delay was considered in the first instance and dismissed by the court below under the impugned order. Hence this revison. Heard learned counsel for the petitioner and the learned counsel for the respondent. While the learned counsel for the petitioner/Municipality placed reliance only upon the affidavit filed in support of the application, wherein there is an averment that their earlier counsel appearing in the suit did not inform the details and status of the suit to the petitioner/Municipality and ultimately on enquiries the petitioner/Municipality appointed a new counsel and filed an application to set aside the exparte decree along with the present application for condoning the delay of 29 days in filing the said application. On the other hand, the learned counsel for the respondent/plaintiff has very elaborately contended that the petitioner/Municipality has not been diligent in prosecuting the suit and on account of their casual attitude, they did not file written statement and ultimately the petitioner/Municipality was set exparte on 3.12.2007. Thereafter the suit remained pending for almost a year and was decreed in exparte on 15.12.2008. In between the said period, the respondent/plaintiff had filed an application calling for documents from the petitioner/Municipality being IA No. 125 of 2008 and notice in the said application was again served on the petitioner/Municipality and they requested the court below to grant time to produce the documents. Even after taking sufficient time and participating before the court below in the said IA, no further steps were taken by the Municipality and ultimately the suit came to be decreed in exparte. The learned counsel, therefore, submits that the petitioner having been aware of all the stages and progress in the suit, cannot now contend that they are not aware and their counsel did not inform them. This revision petition was admitted on 19.2.2010 and an interim stay was granted subject to condition of the petitioner depositing half of the decreal amount with liberty to the respondent to withdraw the same. It is stated by the learned counsel for the respondent that in pursuance of the aforesaid order they have withdrawn the half of the decretal amount. The contention of the learned counsel for the respondent clearly shows that the Municipality was aware of the various stages from the date they were set exparte till almost the passing of the exparte decree. Further for the purpose of Order 9, Rule 13 of the Civil Procedure Code what is relevant and required to be seen is whether the sufficient cause is shown by the defendant on the date of passing of the exparte decree and its inability to seek setting aside thereof. The said sufficient cause for the relevant period is stated to be on account of non- communication from the counsel on record. It is also to be kept in mind that the petitioner is an inanimate person i.e., Municipality, a local body and it acts only through its officers and if ifs officers failed to discharge their duty by inadvertence, the ultimate sufferer would be the local body and consequently the general public. The specific averment in the affidavit of the Commissioner of Municipality filed in support of the application mentions that their earlier counsel did not inform the petitioner/Municipality and eventually they had engaged another counsel to prosecute the matter. This aspect cannot be disputed as proceedings are being prosecuted by different counsels for whatever reasons it may be. In the circumstances, therefore, the marginal delay of 29 days deserves to be condoned subject to the terms. It is also true that the terms for setting aside the exparte decree had to be in the form of imposing costs, but in the present case since half of the decretal amount is deposited by the petitioner and withdrawn by the respondent, for the several lapses on the part of the petitioner pointed out from the record as above, it would be just and appropriate to condone this delay of 29 days and consequently to set aside the exparte decree so that the lis is decided on merits rather than in the absence of one of the parties. Accordingly I.A.No. 138 of 2009 is allowed and the application for setting aside the exparte is also allowed with the consent of both the parties. The petitioner shall not be entitled to seek refund of half of decretal amount deposited as per the interim order of this Court, but shall have liberty to file written statement within such time as the trial court fixes. The trial court shall hear and determine the suit afresh on merits in accordance with law within six months from the date of receipt of a copy of this order. The respondent is entitled to retain the half of the decretal amount which was withdrawn by them in terms of the interim orders of this Court referred to above pending the suit and it shall abide by the result of the suit. The revision petition is allowed subject to the above directions. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 29.6.2011 KR