Judgment:
ORDER
M.N. Chandurkar, C.J.
1. This is a defendant's revision petition directed against an order rejecting an application for condonation of delay in filing a petition under Order 9, Rule 13, Civil Procedure Code.
2. The plaintiff has filed the suit on the basis of a promissory note against the defendant. The suit was posted for trial finally on 30.8,1979. The defendant did not appear on that date and consequently the suit was decreed ex parte on the same date.
3. It was only on 2.1.1980, that is, a little more than four months after the date of the decree, that an application for setting aside the ex parte decree was filed. The application was obviously belated and therefore an application under Section 5 of the Limitation Act to excuse the delay was also filed.
4. The learned District Munsif, Kulitalai, took up for consideration first the application for condonation of delay. On that application the learned District Munsif held that the explanation given by the defendant was not satisfactory and dismissed the application. This order is challenged in this revision petition.
5. The case of the defendant in this Court is that she came to know of the decree only when her property was sought to be attached in execution proceedings. Her case was that she fell ill suffering from fever, swelling and pain on her knees on 30.8.197P, and she could not therefore appear in court. Though in the affidavite she did not state anything particularly as to on what date she was able to move out, her eidence seems to show that it was only at about the time that she made the application that she was a position to move out, having been bed-ridden for about three months.
6. Now undoubtedly the defendant has not appeared in court on 30.8.1979. While therefore there was good justification for passing an ex parte decree, the question as to whether her application under Section 5 of the Limitation Act should be allowed or not would depend on whether she was negligent in making the application and whether she had sufficient justification for making the application belatedly.
7. Normally in the case of a party being absent on the date of hearing, it is expected that the counsel of the party appears before the court and if the party is not present, the counsel would normally ask for an adjournment. It is also the duty of the counsel in case the party is not present to intimate to the party that an ex parte decree has been passed. It is noticed that some times in the case of litigants who come from villages, though they are represented by counsel, no attempt is made by the counsel to be present in court, if the party is not present. A party, who has appointed a counsel would be fully justified in proceeding on the assumption that his or her interests are safe in the hands of the counsel and that in case an adverse order is passed, the counsel would communicate the order to the party. There is nothing in the evidence to indicate that the fact of the ex parte decree having been passed was intimated by the counsel. It may not be possible also to reject out of hand the claim of the defendant that she was ill. The defendant is an old lady in the village aged about 60 years. Normally, the defendant would not remain absent when she knows that her absence is likely to result in a decree against her. Deliberate absence is not a normal event and in the case of a villager like the present defendent, it would be too much to hold that she was deliberately absent on the date of the hearing. The learned District Munsif had merely rejected the explanation with the observation that it was not satisfactory. In such circumstances, when the fact of the ex parte decree is not intimated it may not be possible to blame a party for the delay in making the application and it would be permissible to take liberal view in a case like the present one, the learned District Munsif should have really entertained the application because there are no grounds to disbelieve that the defendant was moving in the village or was really not ill. Undoubtedly, production of a certificate by a doctor would have assisted the court. But it is not that all villagers normally obtain certificates from doctors unless so required or advised by the counsel. In the circumstances, therefore, I set aside the order of the learned District Munsif declining to condone the delay.
8. Accordingly, the revision petition is allowed, the delay is condoned and the application for setting aside the ex parte. decree will now be enquired into by the lower Court. There will be no order as to costs.