IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FOURTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3685 of 2011 Between: Gaddam Pentayya .. Petitioner AND Gangeri Buchanna & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3685 of 2011 ORDER: Heard Sri M. Hamsa Raj, learned counsel for the revision petitioner and Sri Nagarjuna Reddy Burri, learned counsel for the first respondent. 2. The civil revision petition is directed against the order in I.A.No.231 of 2008 in O.S.No.553 of 2004, on the file of the Junior Civil Judge’s Court, Mahabubnagar, dated 12.12.2010, by which the trial Court refused to condone the delay in filing a petition to set aside the ex parte decree. 3. In the affidavit filed in support of the petition, it was stated that there was a compromise between the parties during the pendency of the suit due to which the first respondent herein promised to withdraw the suit which was also informed to the counsel for the revision petitioner before the trial Court. While the plaintiff did not withdraw the suit as assured and the revision petitioner and his counsel absented themselves before the trial Court in view of the assurance by the plaintiff, the suit was proceeded with and an ex parte decree and judgment was obtained, which came to be known to the revision petitioner only on a warrant of arrest being attempted to be executed against him in E.P.No.95 of 2006 on 24.11.2007. Then the first respondent/revision petitioner approached his counsel, obtained a copy of the decree and filed a petition to set aside the ex parte decree, dated 13.03.2006, along with this petition for condonation of delay of 614 days. 4. I.A.No.231 of 2008 for condonation of delay of 614 days and I.A.No.360 of 2008 to set aside the ex parte decree, dated 13.03.2006, were allowed subject to certain conditions as the plaintiff remained ex parte in those two petitions after service of notices, against which the plaintiff preferred C.R.P.Nos.5615 and 5616 of 2008 before this Court. In those revisions, the present revision petitioner did not enter appearance and this Court ordered setting aside of the orders passed in I.A.Nos.231 and 360 of 2008 on payment of costs by the plaintiff to the District Legal Services Authority and further directing the trial Court to take up the interlocutory applications and pass appropriate orders in accordance with law after hearing both sides, while permitting the plaintiff to canvas his factual allegations before the trial Court. 5. It was thereafter that the impugned order was passed by the trial Court on perusal of the affidavit of the revision petitioner, decree requested to be set aside and the execution proceedings. The trial Court straight away concluded that the reason and explanation afforded were not reliable or reasonable and do not indicate the first defendant approaching the Court with clean hands at the fag end of the proceedings. Deliberate and gross negligence on the part of the first defendant in allowing a delay of 614 days was considered by the trial Court to be indicating an intent to protract the litigation and consequently, the applicant’s lack of bona fides led the trial Court to dismiss the petition without costs, while refusing to take a liberal approach. 6. The first defendant challenged the said order herein contending that by virtue of the earlier orders passed in I.A.No.231 of 2008 on 05.05.2008, he already filed his written statement in the suit and the suit in O.S.No.81 of 1986 filed by him was decreed in his favour in 1988 concerning the same subject matter. When the first defendant approached the Court immediately on knowing about the ex parte decree on being informed about the warrant in E.P.No.95 of 2006, the request of the 70 year old first defendant ought to have been considered, more so, when the suit was coming up for cross-examination of the first defendant in pursuance of the proceedings that have taken place by virtue of the earlier orders before the orders in C.R.P.Nos.5615 and 5616 of 2008. 7. Sri M. Hamsa Raj, learned counsel for the revision petitioner filed a memo along with some additional material papers on 18.10.2011 and the affidavit of the first defendant’s counsel before the trial Court is to the effect that O.S.No.81 of 1986, filed by the first defendant for declaration of title and injunction, was decreed in his favour on 28.04.1988 and the plaintiff filed O.S.No.59 of 2001 after lapse of 14 years in respect of the same subject matter. Though he appeared in the first instance, for the first defendant in the suit, the first defendant later informed him that there was a compromise with the plaintiff on which the plaintiff assured to withdraw the suit due to which he did not pursue the matter. The learned counsel for the revision petitioner had also filed the Revised National Tuberculosis Control Programme Identity Card, the Medical Certificate issued by the Medical Officer of M.P.H.C. Hunwada, Mahabubnagar, and the Age Certificate issued by the same Medical Officer to show that the first defendant, at his advanced age of 68 years, was under treatment for more than seven months between November, 2006 and June, 2007 for Pulmonary Tuberculosis. It is true that the state of health of the first defendant was not the subject of the information furnished to the trail Court, but the identity card issued by the competent authority and the medical certificates issued by the Medical Officer need not be straight away brushed aside and even otherwise, the affidavit of the learned counsel, who is also experienced enough to know the responsibilities of the legal profession in presenting any facts on behalf of a client before the Court, deserves due consideration. The counsel, who is also an officer of the Court, has given a plausible reason for the non-attendance of the counsel and the party on the day when the ex parte judgment and decree were rendered or on the earlier dates of hearing which need not be straight away disbelieved. While the trial Court cannot be found fault with in not adopting a liberal approach towards the first defendant in the absence of the first defendant placing the relevant material before the trial Court, the additional material papers now filed by the learned counsel for the revision petitioner may be given due weight as the ultimate pursuit to the Court is to arrive at the truth on merits, but not give a statistical disposal of a case on technicalities. As sufficient cause under Section 5 of the Limitation Act, 1963, always received a liberal interpretation from the Courts uniformly, the delay in filing the petition to set aside the ex parte decree can be considered to be condoned on appropriate terms sufficient to compensate the inconvenience caused to the plaintiff by the delay and also to induce the first defendant to be prompt and diligent at least hereafter. 8. Therefore, I.A.No.231 of 2008 in O.S.No.553 of 2004, on the file of the Junior Civil Judge’s Court, Mahabubnagar, will be allowed on payment of costs of Rs.1,000/- (Rupees one thousand only) to the plaintiff/the learned counsel for the plaintiff before the trial Court and another Rs.1,000/- (Rupees one thousand only) to the credit of the District Legal Services Authority, Mahabubnagar, on or before 14.11.2011; in default, the petition shall stand dismissed and the impugned order, dated 12.12.2010, is set aside and the Civil Revision Petition is ordered, accordingly, without costs. In the event of I.A.No.231 of 2008 being allowed, the trial Court shall consider the petition to set aside the ex parte decree on its own merits in accordance with law, uninfluenced by any observations made in this order. ___________________ G. BHAVANI PRASAD, J Date: 24th October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3685 of 2011 Date: 24th October, 2011 KL