9911796707
TMI Blog1996 (4) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bhubaneswar for correction of Record-of-rights. The present revisionists who were the defendants in the Court below entered appearance in the aforesaid suit and sought adjournments on many an occasion for the purpose of filing of written statement. On 19-8-1991 the petition for time was rejected and the suit was fixed for ex parte hearing. The defendants did not take steps to recall the order setting them ex parte and allowed the suit to proceed ex parte. Two witnesses were examined, one on 3-9-1991 and another on 4-9-1991 and the suit was posted to 13-9-1991 for delivery of judgment, and ultimately judgment was pronounced on 21-9-1991 and eventually an ex parte decree was passed. On 24-3-1992 the defendants filed a petition under Order 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to show indulgence to them. Lack of sufficient cause was also canvassed with vehemence. The petition filed under Section 5 of the Limitation Act was also seriously contested. 3. To substantiate the plea the defendants examined two witnesses and the plaintiff examined one witness. Defendant No. 1 was examined as witness No. 1 for the petitioner therein and the registered clerk was examined as PW 2. The plaintiff examined himself as OPW No. 1. The learned Munsif on the basis of the materials on record came to hold that there was no justification to set aside the ex parte decree. Exception was taken to the delay in filing the application. Being aggrieved by the aforesaid order passed by the learned Munsif an appeal was preferred before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were totally dependent on the clerk of the advocate. Defendant No. 1 (petitioner No. 1 to the present revision) was looking after the case and he was informed by the registered clerk of the advocate about the adjournments from time to time. It is the submission of Mr. Ray that the property involved is substantial as far as the petitioners are concerned and if the ex parte decree remains unchallenged that would amount to extinction of their right, title and interest and substantially imperil their livelihood. The counsel has also emphasized that they had no reason to allow an ex parte decree to be passed when they had entered contest but due to unavoidable circumstances they could not file written statement and they did not have knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng such period of his illness. But no record from his office has been proved or produced to ascertain such plea of the petitioner. The aforesaid reasoning is really not justified not to accept the version of PW 1 who was in charge of the suit. While discussing the evidence of PW 2, the registered clerk of the advocate, the trial Court has not discarded the entry in his diary which was marked as Ext. 2. His information to PW 1 has also not been disbelieved. Exception has been taken to the manner in which the application under Section 5 of the Limitation Act was filed seeking condonation of delay. it has been observed that prayer was for condonation of delay from 4-3-1992 to 18-3-1992 and further period from 19-3-1992 to 23-3-1992 but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix months. It is not unlikely that there might be communication gap. Possibility of lack of communication cannot be totally brushed aside. The other defendants not coming forward to file the application is really inexceptionable. In many a litigation though there are number of parties whether they are plaintiffs or the defendants, all of them do not shoulder the same responsibility. Ordinarily, one or two look after the litigation. It is not uncommon stand of the defendants that defendant No. 1 was looking after the litigation and he was taken ill. Findings of the Courts below that the application was barred by limitation and in effect there was no proper prayer to condone the delay are unsustainable, As the impugned orders reflect the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not exactly negligent but they were victims of circumstances having reposed unimpeachable faith in their advocate's clerk which was expected of them under the normal circumstances. They cannot be permitted to suffer for having trusted the person who was engaged by them to look after the case. The finding of the Courts below that there are no sufficient cause is not sustainable. While I am of the view that an opportunity should be afforded to the present petitioners resist the claim of the opp. party-plaintiff simultaneously I cannot ignore the hardship that would be caused to the plaintiff when the ex parte decree is set aside. To strike a balance I am of the firm view, the plaintiff is to be compensated. Taking into consideration the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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