- (1.)1. Defendant in O.S.No.971 of 1987, on the file of Second Additional Sub Judge's Court, Tiruchirapalli, is the revision petitioner.
(2.)AN ex parte decree was passed against him and the same was sought to be set aside by filing an application under O.9, Rule 13, C.P.C. There was delay in filing that application, and the same was sought to be explained by filing I.A.No.279 of 1990. There was a delay of 260 days in preferring the application to set a side the ex parte decree.
In the affidavit filed in support of that application, she has stated that she had engaged a counsel, who filed a vakalath, but thereafter he did not inform him about the hearing date. Therefore, she could not file written statement. On 25.11.1989, an ex parte decree was passed. She came to know about the same only during summer vacation when she received the case bundle from her counsel's father, since the counsel died by that time. It is her case that since she was not aware of the earlier proceedings, she could not file the application in time and wanted the delay to be condoned.

Counter was filed by plaintiff stating that no sufficient cause was made out for excusing thefor Respondent No.2. The Court made the following ORDER: Defendant in O.S.No.971 of 1987, on the file of Second Additional Sub Judge's Court, Tiruchirapalli, is the revision petitioner.

An ex parte decree was passed against him and the same was sought to be set aside by filing an application under O.9, Rule 13, C.P.C. There was delay in filing that application, and the same was sought to be explained by filing I.A.No.279 of 1990. There was a delay of 260 days in preferring the application to set a side the ex parte decree.

In the affidavit filed in support of that application, she has stated that she had engaged a counsel, who filed a vakalath, but thereafter he did not inform him about the hearing date. Therefore, she could not file written statement. On 25.11.1989, an ex parte decree was passed. She came to know about the same only during summer vacation when she received the case bundle from her counsel's father, since the counsel died by that time. It is her case that since she was not aware of the earlier proceedings, she could not file the application in time and wanted the delay to be condoned.

Counter was filed by plaintiff stating that no sufficient cause was made out for excusing the delay.

The lower court rejected the application holding that every day's delay has not been properly explained, and sufficient cause was not made out. It further came to the conclusion that petitioner got information about the death of her counsel in May, 1990 whereas the ex parte decree was passed in November, 1989. Therefore, death of the counsel cannot be a ground for excusing the delay.

Heard learned counsel for both sides.

(3.)SOME more facts are required to consider the question involved in this revision.
Before the filing of the suit by respondents/plaintiffs, petitioner herein had filed a suit for injunction against them as O.S.No.1152 of 1987, on the file of the District Munsif's Court, Tiruchy. In view of the pendency of O.S.No.971 of 1987, the injunction suit filed by petitioner herein was not being proceeded with. After the ex parte decree was passed, when they attempted to recover possession C.M.P.No.13727 of 1996 was filed before this Court and interim stay was granted by a learned Judge of this Court.

After hearing learned counsel for petitioner, I feel that the petitioner had not been that much negligent so as to warrant and outright dismissal of the application. Her definite case is that she did not hear from her counsel and, therefore, she could not proceed with the case, and only when the case bundle reached her from the counsel's father, she came to know about the ex parte decree. It is not her case that it was because of the counsel's death, she was kept in dark. Her specific case is that after she engaged her counsel, she did not hear anything from him and when the case bundle was sent to her, she understood about the ex parte decree, and that was passed as early as on 25.11.1989. When the petitioner herself had filed a litigation regarding the very same property and she had been seriously prosecuting the same, under normal circumstances, it could be presumed that she would have been vigilant but for the lack of communication.