THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4748 of 2009 (Dated : 23-8-2011) Between: The District Collector, Kadapa and others ...Petitioners A n d Nayuni Venkataramana and others ..Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4748 of 2009 ORDER: This revision is directed against the order dated 03.12.2007 passed in I.A.No.630 of 2006 in O.S.No.59 of 2006 on the file of the Junior Civil Judge, Railway Kodur, whereby and whereunder, the learned Junior Civil Judge dismissed the application filed by the defendants under Section 5 of the Limitation Act to condone delay of 74 days in filing an application to set aside ex parte decree passed on 21.9.2009 in O.S.No.59 of 2006. 2. The respondents herein are the plaintiffs in O.S.No.59 of 2006. They filed the suit against the petitioners-defendants for declaration of title and injunction in respect of Ac.3.92 cents in Sy.No.2/1 situated at Bakarapuram village, Chitvel Mandal. An ex parte decree came to be passed on 21.9.2009. The petitioners-defendants filed petition under Order IX Rule 13 CPC seeking to set aside the ex parte decree along with delay condonation petition being I.A.No.630 of 2006 to condone delay of 74 days. P.Chengalrayulu, Mandal Revenue Officer, Chitvel has sworn to the affidavit filed in support of the delay condonation petition. It is stated in the affidavit that the deponent fell ill for one month due to severe Chicken Gunya and therefore, he could not give instructions to his counsel to file written statement. For better appreciation, I may refer paragraph (4) of the affidavit filed in support of the delay condonation petition, which reads as hereunder:- “ It is submitted that I was appointed as Assistant Returning Officer, Chitvel Mandal to conduct Mandal Parishad Elections (M.P.T.C and Z.P.T.C) 2006 for maintaining Law and Order, Maintenance of Election Code, Elections and Counting. Elections conducted on 29.06.2006 and counting on 04.07.2006. After this Gram Panchayat Election Notification was issued, as I was Mandal incharge for the Gram Panchayat Elections as such I was forced to attend all the Election works, meetings and Gram Panchayat Elections held on 02.08.2006 and after elections, I was appointed as incharge of rehabilitation work in Marlabayualu and Kualamarri villages. In the 2nd week of August, 2006 I was bed ridden for one month due to severe chicken Gunya and severe joint pains. Due to the above reasons, I am unable to give instructions to my Advocate and file written statement. I am herewith filing written statement also”. 3. The respondents filed counter resisting the delay condonation petition. 4. The learned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application on the ground that delay of 74 days has not been properly explained, by order dated 03.12.2007. Hence, this revision. 5. Notice to the respondents came to be ordered on 14.10.2009. The respondents entered appearance through a counsel. 6. Heard learned counsel appearing for the parties. 7. Learned Government Pleader for Arbitration appearing for the petitioners submits that it is the 3rd petitioner who has been giving instructions to the counsel to file written statement and because of the ailment of the then Mandal Revenue Officer, he could not give instructions to file written statement and consequently, an ex parte decree came to be passed. A further submission has been made that the petitioner filed written statement along with a petition to set aside the ex parte decree. Copy of the written statement finds place in material papers at page No.17. Learned Government Pleader contends that the dispute involved in the suit is in respect of Ac.3-92 cents and if delay of 74 days in filing the petition to set aside the ex p a r t e decree is not condoned, valuable rights of the petitioners/defendants would get defeated. 8. Per contra; learned counsel appearing for the respondents- plaintiffs submits that the petitioners failed to file written statement despite granting many adjournments and the trial Court considered the material brought on record in a right perspective and proceeded to dismiss the application, by order dated 03.12.2007, in which case, the order impugned in the revision does not warrant interference. 9. I have gone through the affidavit filed in support of the delay condonation petition. The deponent stated the circumstances under which the written statement could not be filed in the suit. The guiding principle is that justice should not be sacrificed on the alter of technicalities but at the same time the Court should not loose sight of the satisfactory requirement of existence of insufficient cause and condone the delay on equitable grounds. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that discretion can be exercised only if the delay is within certain limit. Length of the delay is no matter, acceptability of the explanation is the only criteria. The then Mandal Revenue Officer has sworn to the affidavit filed in support of the delay condonation petition. The circumstances under which delay occurred have been stated therein. In the given facts and circumstances, the trial Court ought to have condoned the delay on certain terms. 10. In that view of the matter, the Civil Revision Petition is allowed setting aside the order-dated 03.12.2007. Consequently, delay of 74 days in filing petition to set aside the ex parte decree is condoned, subject to payment of costs of Rs.2,000/- in the trial Court to the credit of O.S.No.59 of 2006 within four weeks. As and when the costs are deposited, the respondents-plaintiffs are permitted to withdraw the same. _____________________ B.SESHASAYANA REDDY, J Dt.23-08-2011 *RAR