Full Judgment
Civil revision petition preferred against the order dated 9.1.2012 passed by the District Munsif, Gudiyattam in I.A.No.826 of 2010 in O.S.No.1000 of 1987.
ORDER
1. Inveighing the order 9.1.2012 passed by the District Munsif, Gudiyattam in I.A.No.826 of 2010 in O.S.No.1000 of 1987, this civil revision petition is filed.
2. Broadly but briefly, narratively but precisely, the germane facts in a few broad strokes can be encapsulated thus:
(i) One Subramani/the plaintiff filed the suit as against four persons, including the revision petitioner herein. The said Subramani died and his LRs were brought on record. Similarly D1 also died and his LRs were also brought on record. Ultimately, an ex-parte preliminary decree was passed for partition. The revision petitioner herein/Riyaz Ahamed/D4, who is the purchaser of a portion of the suit property from the first defendant filed this revision.
(ii) An application in I.A.No.826 of 2010 was filed by D4 through his Power Agent-his brother to get the delay of 435 days condoned in filing the application under Order 9 Rule 13 of C.P.C.to get the ex-parte decree passed on 30.6.2009, set aside, without disclosing in the cause title the name of the Power of Attorney, however, the affidavit was sworn by the Power of Attorney of D4.
(iii) After hearing both sides, the lower Court dismissed the I.A.826 of 2010 on the main ground that the said application was filed without disclosing the factum of the earlier I.A.having been filed on 1.7.2009 itself under Order 9 Rule 13 of C.P.C. to get the ex-parte decree set aside, which was passed on 30.6.2009.
(iv) The I.A.No.826 of 2010 was filed contending and projecting as though the Power of Attorney of D4 came from Abu Dhabi, just before the filing of the said application and sought for condoning the delay in filing the application under Order 9 Rule 13 of C.P.C. without disclosing the earlier filing of the said application under Order 9 Rule 13 of C.P.C.
3. Being aggrieved by and dissatisfied with the said order, this revision has been filed.
4. The learned counsel for the revision petitioner herein would make a supine submission to the effect that it is true that on the very next day of the ex-parte decree came to be passed, an application under Order 9 Rule 13 was filed by the Power of Attorney of D4, but unwittingly that fact was not found disclosed in the affidavit accompanying the application in I.A.No.826 of 2010.
5. According to the learned counsel, there was no wilful element involved in leaving such fact in the affidavit accompanying the application in I.A.No.826 of 2010. As such, he would pray for condoning the delay and for entertaining the very application filed under Order 9 Rule 13 of C.P.C.
6. The point for consideration is as to whether there is any justification in the procedure adopted by D4 and his Power of Attorney?.
7. Ex facie and prima facie the perusal of the records, including the impugned order would disclose that there is nothing wrong in the order passed by the lower Court, as the lower Court looked askance at the conduct of the Power of Attorney of D4 in filing the affidavit to the effect as though he came to know about the ex-parte decree passed on 30.6.2009 only just before the filing of the application in I.A.No.826 of 2010 and as such, he wanted the Court to believe that he was in the dark for a pretty long time relating to the ex-parte decree having been passed.
8. Whereas, the learned counsel would try to explain and expound by pointing out that there is no mala fide intention on the part of the power of Attorney of D4 in filing such affidavit. According to him had his client possessed such mala fide intention, he would have got drafted the affidavit differently; but he undertook the responsibility of the delay on himself and wanted the delay to be condoned.
9. Whatever be the explanation that might be now forth coming from the revision petitioner's side, he was not justified in not disclosing the factum of the earlier application filed under Order 9 Rule 13 of C.P.C. Which was filed just after the date of ex-parte decree having been passed by the lower Court.
10. The learned counsel for the revision petitioner would submit that presumably the application under Order 9 Rule 13 had got lost. Had such application been with the Advocate concerned, he would have represented it with a petition to get the delay condoned in representation.
11. In this factual matrix I cannot find fault with the order passed by the lower Court. However, since the learned counsel for the revision petitioner/D4 entreats and implores that an opportunity might be given to the revision petitioner herein/D4 to participate in the proceedings, I would like to issue the following direction:
Liberty is given to D4 and his Power Agent to represent the original I.A. filed under Order 9 Rule 13 of C.P.C. with an application to get the delay condoned in representation. If the original petition under Order 9 Rule 13 of C.P.C. which was returned by the Court had got lost, then necessary application be filed for reconstructing that application and along with such application, an application to get the delay condoned in representation also shall be filed, disclosing the true facts. Whereupon, it is for the lower Court to pass suitable orders, untrammelled and uninfluenced by any of the observations made by this Court.
12. The civil revision petition is disposed of accordingly. However, there is no order as to costs.