THE HON'BLE SRI JUSTICE R.SUBHASH REDDY CIVIL REVISION PETITION No.4411 of 2010 ORDER: This Civil Revision Petition is filed under Section 115 CPC by the first defendant in O.S.No.52 of 2008 on the file of the learned I-Additional District Judge, Warangal, against the order, dated 21.07.2010, by which, the Court below dismissed I.A.No.284 of 2009 filed by the petitioner herein under Section 5 of the Limitation Act to condone the delay of 63 days in filing an application under Order IX Rule 13 CPC. O.S.No.52 of 2008 was filed by respondents 1 to 3 herein seeking specific performance of an agreement of sale with regard to suit schedule property, namely, Acs.5.24 guntas of agricultural land covered by Survey No.253 of Station Ghanpur Village and Mandal, Warangal District. In the aforesaid suit, basing on the report of the process server, the petitioner was set ex parte and ex parte decree was passed on 12.11.2008. Apprehending filing of appeal by the petitioner, a caveat petition was filed on behalf of respondents 1 to 3 before this Court and a copy of the same was sent to him by registered post. He received the same and filed I.A.No.284 of 2009 in the aforesaid suit seeking to condone the delay of 63 days in filing the application under Order IX Rule 13 CPC to set aside the ex parte decree. In the affidavit filed in support of I.A.No.284 of 2009, it was stated that the petitioner received the caveat petition sent by registered post, on 20.12.2008 and only on receipt of it, he came to know that a decree was passed on 12.11.2008 in the aforesaid suit. It was further stated that he was not served with the suit summons, and on verification, he came to know that as there was collusion between the process server and respondents 1 to 3/plaintiffs, such a report was filed by the process server and basing on that, he was set ex parte. It was further stated that he suffered with fever in the month of November, 2008 and he was treated by one doctor, by name, Dr.T.V.Ramakrishna Rao of Srinivasa Nursing Home, Station Ghanpur. It was further stated that fever relapsed and he suffered with typhoid fever. It was also stated that his son and daughter are studying at Hyderabad and his wife, who is an employee, could not undertake any other work because she attended to him as well as employment, as such, there was some delay in filing the petition to set aside the ex parte decree and I.A.No.284 of 2009 seeking to condone such delay, was ultimately filed on 12.12.2008. However, the said I.A. was resisted by filing a counter-affidavit by respondents 1 to 3/plaintiffs. In the counter-affidavit, while denying various allegations made by the petitioner, it was the case of respondents 1 to 3/plaintiffs that the allegation of the petitioner that he came to know about the decree only on 12.11.2008 was falsehood. It was stated that according to the doctor certificate, the petitioner was outpatient from 06.11.2008 to 10.02.2009. Hence, there was every possibility of his approaching the Court. However, intentionally, the petitioner in order to drag on the proceedings did not proceed with the case. It was also stated that though the wife of the petitioner is an employee, she should have approached the Advocate on any one Sunday to pursue that case. Pleading that there were no cogent and sufficient reasons to condone the delay, respondents 1 to 3/plaintiffs sought for dismissal of I.A.No.284 of 2009 filed by the petitioner. The Court below by the impugned order, mainly on the ground that in the case of either typhoid or jaundice, there would be naturally a record showing the tests in the ordinary course of events and except medical certificate, there is no other material placed on record by the petitioner, rejected I.A.No.284 of 2009. Hence, this Civil Revision Petition. It is contended by Sri Bankatlal Mandhani, learned counsel for the petitioner that from the date of knowledge, there is only 23 days delay but not 63 days. It is submitted that the petitioner came to know about the ex parte decree passed in the aforesaid suit only on receipt of the caveat petition, which was sent to him by registered post, filed by respondents 1 to 3/plaintiffs before this Court, as such, strictly speaking, there was delay of 23 days only but however, if the period is computed from the date of the decree, the delay would be 63 days. It is further submitted that as the medical certificate, which was marked as Ex.P.3, was not disputed, the Court below merely on the ground that no further material was filed, ought not to have rejected I.A.No.284 of 2009 filed by the petitioner. On the other hand, Sri N.Jayasurya, learned counsel for respondents 1 to 3/plaintiffs submitted that though it was the case of the petitioner that he was suffering from typhoid fever, medical certificate, which was marked as Ex.P.3, shows that he suffered recurrent attacks of amoebic hepatitis and fever. He also submitted that in the absence of any material in support of the plea of the petitioner, the Court below rightly exercised the jurisdiction vested in it and there are no grounds to interfere with the impugned order. He relied on the judgment of the Hon’ble Supreme Court in the case of PUNDLIK JALAM PATIL v. EXE. ENG. JALGAON MEDIUM PROJECT[1]. I have perused the affidavit filed in support of I.A.No.284 of 2009, the counter-affidavit filed therein and the impugned order. It is to be noticed that the ex parte decree passed against the petitioner in the aforesaid suit was not in the knowledge of him and he came to know only on receipt of the caveat petition filed by respondents 1 to 3/plaintiffs. In clear terms, it is stated in the affidavit filed in support of I.A.No.284 of 2009 that the petitioner suffered with fever in November, 2008, fever relapsed and he was under the treatment of Dr.T.V.Ramakrishna Rao, Srinivasa Nursing Home, Station Ghanpur. Even a perusal of the certificate, which is also filed in the material papers, shows that the petitioner was diagnosed as recurrent attacks of amoebic hepatitis with jaundice and fever. It is also to be noticed that although the counter-affidavit was filed, respondents 1 to 3/plaintiffs have never disputed the correctness of the certificate issued by the aforesaid doctor. From the statement on oath that he suffered from typhoid fever and it was being relapsed during the period in question, coupled with the certificate issued by the doctor that he treated the petitioner, it appears, the petitioner has shown sufficient reasons to condone the delay. Although it is the only ground appears, the only ground on which the impugned order was passed by the Court below is that apart from the medical certificate, no other supporting material is filed in proof of allegation of the petitioner. When Ex.P.3 itself is not disputed and on oath, the petitioner stated in the affidavit that fever relapsed, merely because supporting material is not filed by the petitioner itself is no ground to reject I.A.No.284 of 2009. Further, it is to be noticed that in PUNDLIK JALAM PATIL’s case (1 supra), there is abnormal delay of 1724 days and in the judgment, the Supreme Court has noticed that there was incorrect statement made by the respondent to the effect that he had no knowledge of the award in the land acquisition proceedings. In the context of the above said facts, the appeal was allowed. But, having regard to the facts and circumstances of the instant case that the suit is for specific performance, delay is 63 days and in support of the affidavit, certificate of the doctor, who treated the petitioner, was filed and it was not disputed, the ratio laid down by the Supreme Court in PUNDLIK JALAM PATIL’s case (1 supra) would not render any assistance to the case of respondents 1 to 3/plaintiffs. For the aforesaid reasons, this Court is of the view that to condone the delay of 63 days in filing a petition to set aside the ex parte decree, sufficient reasons are established by the petitioner. In that view of the matter, the Civil Revision Petition is allowed and the order under challenge, dated 21.07.2010, is set aside. Consequently, I.A.No.284 of 2009 stands allowed. No order as to costs. ______________________ R.SUBHASH REDDY, J 29th SEPTEMBER, 2010. kvni [1] 2008 (6) ALT 38 (SC)