THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.1175 of 2010 O R D E R: The Civil Revision Petition is directed against the order, in I.A.CFR.No.1 of 2010 on the file of Senior Civil Judge, Zaheerabad, dated 23.02.2010. O.S.No.170 of 2008 on the file of the trial Court was filed by the 1st respondent herein against the petitioner and respondent Nos.2 to 4 for recovery of Rs.2,29,703/- on the basis of a chit transaction. The 2nd defendant/petitioner herein was claimed to be the guarantor for the 1st defendant in the transaction. The petitioner filed the petition in CFR No.1 of 2010 requesting for condonation of delay of 16 days in filing a petition to set aside the judgment and decree in the suit, dated 18.11.2009 against him claiming that he was alone contesting the suit and due to communication gap between his counsel staying at Hyderabad and the counsel at Zaheerabad to whom the matter was entrusted, he was unrepresented on the date of hearing, on which the decree was passed. The trial Court in the impugned order noted that the petitioner filed his written statement and reported not ready to cross-examine PW.1 on 13.10.2009, due to which the cross-examination was treated as “NIL”. The 2nd defendant or his counsel were not represented on 30.10.2009 to which date the matter was posted for the 2nd defendant’s evidence and after two more dates of hearing, the suit was decreed on 18.11.2009. The trial Court was of the opinion that the judgment in the suit is not an ex parte judgment against the 2nd defendant and the Court having become functus officio after pronouncement of judgment, cannot consider any condonation of delay or any request to set aside the judgment, when the 2nd defendant was never set exparte. The trial Court felt that the decision reported in Mekala Ramasubbaiah v Potula Yesepu and others[1] has no application. The 2nd defendant challenges the said order in this revision with reference to the State amendment under Order 17 Rule 3 of the CPC, which mandates the Court to proceed under Order 17 Rule 2 not Rule 3, if there was any default under both the rules and the revision petitioner also contended that the decision cited before the trial Court is of direct application. Heard Sri P.Shanker Rao Patil , learned counsel for the revision petitioner and Sri K.Maheswara Rao, learned counsel for the decree holder/respondent. Respondents 2 to 4 who are co-defendants with the present petitioner were stated to be not necessary parties to the revision petition. Order 17 Rule 2 provides for the Court being enabled to dispose of a suit in one of the modes directed by Order 9 of the Civil Procedure Code. If on the date of adjournment of a suit for hearing, any of the parties failed to appear, it is for the Court either to proceed to pass an order of dismissal for the default of plaintiff or pass an order ex parte for the default of the defendant. Under Rule 3, the Court is enabled to decide the suit forthwith if any of the parties fails to produce the evidence or fails to perform any other act, which is necessary for the further progress of the suit for which the Court has allowed time. Insofar as the State of Andhra Pradesh is concerned, a proviso was inserted in Rule 3, which mandates the Court to proceed under Rule 2 and not under Rule 3 if default by the party is under both the Rules. In Mekala Ramasubbaiah v Potula Yesepu and others (one Supra), the learned Judge was considering the scope of Order 17 Rules 2 and 3 and also the amendment made by the Andhra Pradesh High Court and observed that this Court has laid down in a similar fact situation more than once that the petition under Order 9 Rule 13 CPC is maintainable under such circumstances. The learned Judge noted that where a party is absent and did not open his case at all and the suit was disposed of on merits, it has to be treated as an ex parte order. The principles laid down by His Lordship squarely applied to the facts of the present case, while even on the facts as extracted in the impugned order, the 2nd defendant did not enter any appearance and did not produce any evidence. As the Court is bound to act under the proviso to Order 17 Rule 3 of the CPC, the orders passed by the Court thereafter have to be treated as those made under Order 9 of the CPC as enabled by order 17 Rule 2 of the CPC. Consequently, the petition to set aside the ex parte decree and also the petition to condone the delay in filing the petition to set aside the ex parte decree are very much maintainable. Now, as both parties are before this Court without referring them back to the trial Court for the purpose of considering the condonation of delay, the same can be considered here itself. The petitioner attributed the communication gap between his advocates to be the reason for his absence on 18.11.2009, when the suit was decreed and the application was filed on 30.12.2009 alleging that the decree and judgment became known to his counsel on 26.12.2009. As the existence of any sufficient cause for condonation of delay has to be liberally viewed under Section 5 of the Limitation Act, there appears sufficient justification for the request for condonation of delay of only 16 days in filing the petition to set aside the ex parte decree. Therefore, the said petition can be allowed on appropriate terms. Hence, the petition in C.F.R.No.1 of 2010 in O.S.No.170 of 2008 on the file of the Senior Civil Judge, Zaheerabad, will be allowed on payment of costs of Rs.500/- to the credit of the Mandal Legal Services Committee, Zaheerabad, within 15 days from today and, in default, the petition shall stand dismissed. The Civil Revision Petition is ordered accordingly. No costs. _____________________ G.BHAVANI PRASAD,J 2nd July, 2010. PNV [1] 2008(5) ALT 165