THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.R.P.NO.3482 OF 2011 ORDER Heard Sri K.Mahipathi Rao, learned counsel for the revision petitioners. The civil revision petition is directed against the order dated 11-4-2011 in I.A.No.178 of 2011 in O.S.No.131 of 2010 on the file of the Principal Senior Civil Judge, Mahabubnagar. The first respondent - Central Ware House Corporation, Hamali Sangham, is the first defendant in the suit and it filed I.A.No.178 of 2011 to set aside the ex parte order passed against it on 6-9-2010. The plaintiffs 1 to 4 filed a counter-affidavit against the said application and the second defendant did not appear to have filed any counter. The trial Court passed the impugned order noting that though the first defendant entered appearance in the suit on 14-07-2010, it did not file its written statement and remained ex parte and it filed the petition on 16-11-2010 much later to the expiry of 90 days from the date of receipt of summons/appearance of the defendant before the Court. However, in view of the decision in Kailash vs. Nanhku and others[1], wherein the Apex Court opined that order VIII, Rule 1 of the Code of Civil Procedure is a part of procedural Law and extension of time may be allowed by way of an exception on the Court being satisfied about the circumstances to avoid grave injustice depending on the facts and circumstances of each case, the trial Court having felt that in the absence of much delay and as even the issues in the suit were not yet framed, interest of justice justifies granting of reasonable opportunity, allowed the petition on costs of Rs.300/- to be paid within 10 days. The plaintiffs are before this Court challenging the said order contending that there is nothing exceptional in the present case so as to enable the petitioner-defendant to move an application in view of the principles laid down by the Apex Court and in spite of the plaintiffs filing an elaborate counter, the trial Court did not consider the same in its order except noting that a counter was filed. Hence, the plaintiffs desire the impugned order to be reversed. The point for consideration is whether the impugned order is liable to be interfered with. In the counter affidavit filed on behalf of the plaintiffs in I.A.No.178 of 2011, the plaintiffs only relied on the non filing of the written statement on 6-9-2010 in spite of conditional order and as the petition was filed after lapse of more than 90 days on 4-3-2011 without mentioning any reasons, the request cannot be considered. It is stated in the affidavit filed in support of the application that the earlier default was neither intentional nor deliberate. It is true that in the impugned order the trial Court stated that the petitioner-defendant did not file any written statement in spite of a conditional order. The opposition to allow the request made by the petitioner-defendant was specifically recorded in paragraph No. 5 of the impugned order, referring to the reasons stated by the plaintiffs for the same. The trial Court specifically considered the facts and circumstances of the case before permitting the request on payment of appropriate costs. It is well settled that even if an order under Order 9 Rule 7 CPC were not to be set aside or not even requested to be set aside, still the defendant, against whom such an ex parte order subsists, can participate in the further proceedings in the suit as a matter of right. It is well settled that Rules of Procedure are intended to be hand-maids of justice and not intended to handover savage consequences for any technical lapses. Determination of the cause before the civil Court on merits but not on technicalities is the recognized rule and that was why the Apex Court in the decision relied on by the trial Court upheld not withstanding the directory provision under Order VIII Rule 1 CPC that in each case depending on the facts and circumstances of that case, the trial Court can exercise its judicial discretion. It is true that the Apex Court used the expression about exceptional circumstances. But, the Court need not be too rigid on this aspect in the light of the philosophy of law laid down by the Apex Court itself as the suit is still at the stage of framing of issues and the delay is minimal. The exercise of judicial discretion of trial Court to set aside the ex parte order on suitable terms cannot be found fault with even any inconvenience caused to the plaintiffs by delay being compensated by imposing costs. Accordingly, the civil revision petition is dismissed at the stage of admission. No costs. ______________________ G.BHAVANI PRASAD,J rkk Dated: 30-08-2011 [1] AIR 2005 SC 2441