THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.No.6065 of 2009 Date:10.2.2010 Between: Bandavath Thopya, Kondrapole, Nalgonda District and others. Petitioners. And Lavuri Balaji, Ramanthapur, Hyderabad. Respondent. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.No.6065 of 2009 ORDER: This revision is directed against the order dated 12.3.2009 passed in I.A.No.232 of 2005 in O.S.No.171 of 2003 on the file of the Principal Junior Civil Judge, Miryalaguda, whereby and whereunder the learned Junior Civil Judge dismissed the application filed by the defendants under Section 5 of the Limitation Act. The respondent is the plaintiff in O.S.No.171 of 2003. He filed the suit for perpetual injunction against the petitioners herein. The petitioners entered appearance in the suit and sought time for filing of written statement. Subsequently, they did not file the written statement and thereupon, the suit came to be decreed exparte on 29.12.2003. The respondent/plaintiff filed E.P.No.185 of 2004 for violation of the permanent injunction. The petitioners moved a petition under Order 9 Rule 13 CPC to set aside the exparte decree along with an application being I.A.No.232 of 2005 under Section 5 of the Limitation Act to condone the delay of 105 days in filing the petition. Petitioner No.1 has sworn to the affidavit filed in support of the delay condonation petition. It is stated in the affidavit that he is aged about 70 years and he has been suffering from mouth paralysis apart from old age ailments like B.P., body pains etc. Therefore, he could not pursue the matter and ultimately, an exparte decree came to be passed, which he came to know on receipt of notices in the Execution Petition. It is further stated in the affidavit filed in support of the petition that his son purchased Ac.0.20 guntas of dry land in Sy No.431 situated at Kondrapole Revenue Village for a consideration of Rs.25,000/- on 13.3.1997 from Lavuri Boja and Lavuji Balu under registered sale deed vide document No.585 of 1997 and whereas the 2nd petitioner/defendant purchased Ac.1.00 of dry land in Sy.No.431 situated at Kondrapole Revenue Village on 13.3.1997 for a consideration of Rs.50,000/- from Lavuri Boja and Lavuji Balu on 13.3.1997 under a registered document bearing No.584 of 1997. The names of the purchasers have been entered in revenue records as owners and pattadar passbooks and title deeds came to be issued in their names. The plaintiff filed counter resisting the application. Apart from denying the ailments of the 1st defendant, he also denied the very execution of sale deeds by the purchasers namely; Lavuri Boja and Lavuji Balu. It is stated in the counter that the sale deeds are sham and fabricated. For better understanding, I may refer Paragraph No.3 of the counter affidavit filed by the plaintiff, which reads as follows:- It is false to say that the petitioners just recently received E.P. notices. It is also false to say that the respondent/plaintiff filed the false E.P. It is submitted that after filing of Vakalath this Hon’ble Court given number of opportunities to the petitioners/defendants, but they have not come forward to file their written statement and also they have not interest to content the above matter. As such the Hon’ble Court vexed with the attitudes of the petitioners/defendants and set them exparte and exparte decree passed against the petitioners/defendants on 29.12.2003. It is false to say that the petitioner No.2 is a mouth paralysis and the petitioner No.1, who is the deponent herein suffering from old age problems.” Neither party choose to adduce evidence in support of the respective contentions. The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the defendant failed to offer sufficient reason for condonation of delay of 411 days in filing the petition under Order 9 Rule 13 CPC and thereby dismissed the application by order dated 12.3.2009. The said order is assailed in this revision. Heard learned counsel appearing for the parties. The learned counsel appearing for the petitioners submits that the petitioners could not file the application under Order 9, Rule 13 CPC within the stipulated period as the petitioner No.1, who has been looking after the litigation, fell ill and could not pursue further and that the petitioners came to know of the exparte decree on receipt of notice in execution petition filed by the respondent/plaintiff. A further submission has made that the son of the 1st petitioner purchased Ac.0.20 guntas of land under registered sale deed and whereas the 2nd petitioner purchased Ac.1.00 cents under registered sale deed and if delay in filing the petition to set aside the exparte decree is not condoned, their valuable rights in respect of immovable property would be affected. Learned counsel appearing for the respondent/plaintiff submits that the petitioners have not offered any sufficient reasons for condoning the delay of 411 days and therefore, the lower Court is justified in dismissing the application. A further submission has made that the petitioners are not prompt in filing the application soon after the receipt of notices in E.P and they have taken their own time to file the application to set aside the exparte decree along with the delay condonation petition. Indisputably, the petitioner No.1 is aged 70 years and the petitioner No.3 is aged about 73 years. The 1st petitioner, who has sworn to the affidavit in support of the petition filed under Section 5 of the Limitation Act, specifically stated that his son purchased Ac.0.20 guntas under registered sale deed and whereas the 2nd petitioner purchased Ac.1.00 cents under registered sale deed. The respondent/plaintiff pleaded in the counter that the sale deeds are sham and fabricated. The question is whether the sale deeds are sham and fabricated is to be examined in the suit. It can be said without fear of contradiction that substantial rights of the petitioners in immovable properties are involved in the litigation. Pragmatic liberal approach should be made in considering the petitioners under Section 5 of the Limitation Act. The guiding principle is that justice should not be sacrified on the alter of technicalities but at the same time the Court should not loose sight of the statutory requirement of existence of sufficient cause and condone the delay on equitable grounds. Having regard to the fact that substantial rights of the petitioners in immovable properties are involved in the litigation, I deem it appropriate to condone the delay of 411 days in filing the petition to set aside the exparte decree, subject to the petitioner depositing costs of Rs.2,000/- (Two thousand rupees only) within two weeks from today, failing which, the order impugned in the revision shall hold good. With the above condition, the Civil Revision Petition is disposed of. No costs. ______________________________________ JUSTICE B. SESHASAYANA REDDY Date:10.2.2010 Note: Furnish CC within one week. B/O mrb