THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.NO.2769 OF 2002 2ND DECEMBER, 2009 BETWEEN: REDDIVARI APPI REDDY AND OTHER .. APPELLANTS AND REDDIVARI MUNEMMA AND OTHERS .. RESPONDENTS THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.NO.2769 OF 2002 JUDGMENT: 1. This Civil Miscellaneous Appeal is directed against the order dated 7-8-2002 passed in I.A.No.187 of 2000 in O.S.No.25 of 1987 on the file of Principal Senior Civil Judge, Punganur, whereby and where under the learned Senior Civil Judge dismissed the application filed by D1 and D8 under Order IX Rule 13 CPC. 2. Background facts in nutshell leading to filing of this appeal by D1 and D8 are: Reddivari Munemma-1st respondent herein filed O.S.No.25 of 1987 seeking partition and separate possession of her share in the suit schedule property. Except D1 and D8, other defendants remained exparte. D1 and D8 filed written statement resisting the claim of the plaintiffs. Issues came to be settled and parties commenced adducing evidence. After closure of the plaintiffs evidence, D1 and d8 examined one witnesses in chief. Despite granting many adjournments for cross- examination of DW.1, the defendants 1 and 8 failed to proceed with the case and consequently the trial court considered the evidence brought on record and decreed the suit by judgment dated 23.3.1999. D1 and D8 filed petition under Order IX Rule 13 CPC along with delay condonation petition. D1 and D8 pleaded in the petition that they could not proceed with the trial of the suit because of the involvement of D1 in the accident. Indeed D1 filed his affidavit in support of the application filed under section 5 of the Limitation Act as well as petition filed under Order IX Rule 13 CPC. The trial court allowed the application filed u/s 5 of the Limitation Act and condoned the delay of 7 days in filing the petition u/o IX Rule 13 CPC. However, the trial court dismissed the application being I.A.No.187 of 2000 filed under Order IX, Rule 13 CPC on the ground that D1 and D8 have not offered sufficient reasons to set aside the exparte decree. The order passed in I.A.No.187 of 2000 is assailed in this appeal. 3. Heard learned counsel appearing for the parties. 4. Learned counsel appearing for the appellants/D1 and D8 submits that the trial Court having accepted the reason for condonation of delay in filing the petition under Order IX, Rule 13 of CPC committed error in not accepting the same reason for setting aside the exparte decree. A further submission has been made that rights of the parties in respect of immoveable property are involved in the suit and in which case technicalities are required to be ignored in considering the application filed by D1 and d8 to set aside the exparte decree. 5. Learned counsel appearing for R1/plaintiff submits that D1 and d8 examined DW.1 in chief in July, 1997, and they dragged on the matter for two years and despite granting many adjournments, they did not choose to adduce further evidence and consequently suit came to be decreed on 23.3.1999. He would also contend that the appellants/D1 and D8 failed to place on record any medical certificate as proof of D1 involving in accident in which case the order passed by the trial Court does not warrant interference in this appeal. 6. The guiding principle in dealing with an application to set aside the exparte decree is that justice should not be sacrificed or altered on technicalities, but at the same time the court should not loose site of the statutory requirement of sufficient cause for setting aside exparte decree. Indisputably the suit relates to immovable property and the rights of the parties are required to be adjudicated in the suit. Pragmatic and liberal approach should be made in considering the petition under Order IX, Rule 13 of CPC. Considering the facts and circumstances of the case, I am of the view that the petition filed by D1 and D8 to set aside exparte decree can be allowed subject to certain conditions. 7. Accordingly, this Civil Miscellaneous Appeal is allowed setting aside the order dated 7-8-2002 passed in I.A.No.187 of 2000 in O.S.No.25 of 1987 on the file of Principal Senior Civil Judge, Punganur, subject to following conditions: 1) The appellants/D1 and D8 shall pay costs of Rs.7,500/- (Rupees seven thousand five hundred only) to R1/plaintiff within four weeks; 2) The appellants/D1 and D8 shall complete their evidence in not more than three sittings fixed by the trial court. The trial court is directed to dispose of the suit as expeditiously as possible preferably within three months from the date of compliance of payment of costs as indicated supra. 2nd December, 2009. ( B.Seshasayana Reddy,J ) tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.A.NLO.2769 OF 2002 2nd December, 2009.