Vemu Suresh Kumar v. Mohammad Farooq

HON'BLE SRI JUSTICE V.RAMASUBRAMANIAN Civil Revision Petition No.100 of 2016 Order:

This revision arises out of an order passed by the Court below refusing to condone the delay in seeking to set aside an ex parte decree.

2. Heard the learned counsel on both sides.

3. The suit was one for permanent injunction. The suit was decreed ex parte. In seeking to set aside the ex parte decree, there was a delay of 651 days. The Court below refused to condone the delay on the ground that the reasons stated by the petitioner are not sufficient.

4. The reasons stated by the petitioner in paragraph 3 of the Affidavit in support of the condone delay petition read as follows: "3. I state that after receipt of my suit summons I have an engage my Counsel namely Pilla Sudhakar, Advocate, my previous Counsel filed Vakalat on my behalf and matter is posted for filing of my written statement on 15/04/2013, but my previous Counsel did not proper representation before this Hon'ble Court on my behalf and he did not inform the correct adjournment dates to me for Suit proceedings and moreover, on 15/04/2013 I have been suffering from ill-health, and subsequently, I have approached to this Hon'ble Court but, while the Hon'ble Court's staff has not functioning day to day due to Strike of Samaikya Andhra.

Owing to said reasons I have no knowledge about the suit proceedings, and I did not file my written statement in time before this Hon'ble Court. My absence is neither will full nor negligence on my part, except above said reasons only and I have good grounds to succeed in Suit proceedings due to non filing of my written statement and no representation on my behalf in the Suit proceedings finally the Hon'ble Court was pleased to pass an ex-party Decree against me on 16/12/2013."

5. The Court below went on the premise that Samikyandhra Bandh was observed only for a period of 69 days and that even during the said period, the Courts were functioning smoothly due to noninterference by Advocates.

6. But, that is not the way to look at the whole issue. The fact remains that the Courts were paralysed to some extent, for some time during the period in question. The petitioner was not after all citing a reason which had no connection with his Advocate not attending Court-work. The petitioner had actually engaged a counsel, who seems to have failed in his duties. This is borne out by paragraph 3 of the Affidavit. Therefore, I am of the considered view that the Court below ought to have taken a pragmatic approach.

7. In view of the above, the revision is allowed and the order under revision is set aside. The Court below is directed to take up the application to set aside the ex parte decree and decide it within two weeks and thereafter dispose of the suit itself within a period of two months after disposal of the setting aside petition. The miscellaneous petitions, if any, pending in this revision shall stand closed. No costs.

___________________________ V.RAMASUBRAMANIAN, J.

01st July, 2016.

Ak HON'BLE SRI JUSTICE V.RAMASUBRAMANIAN Civil Revision Petition No.100 of 2016

01st July, 2016.

(Ak)