JUDGEMENT
RAKESH TIWARI, J. -
(1.)HEARD the learned Counsel for the parties and perused the records.
(2.)DEFENDANT -petitioner has filed the present writ petition against the judgment and order dated 20 -9 -1999 passed by the District Judge, Varanasi dismissing Misc. Civil Appeal No. 154 of 1999 arising out of the judgment dated 2 -8 -1999 passed by Civil Judge, Varanasi in Civil Misc. Case No. 122 of 1999 reflecting the restoration application of the petitioner under Order IX, Rule 13 CPC, filed in Suit No. 203 of 1972, Chhangur Ram v. Kedar Nath, for setting aside the ex -parte decree dated 24 -3 -1999.
The case of the petitioner is that Suit No. 203 of 1972 was filed for partition on 25 -8 -1972 by the father of respondents No. 2 to 5 i.e. Chhangur Ram. The partition was sought in respect of House No. CK -64/121 in which the plaintiff has claimed one -half share. It has been submitted by the Counsel of the petitioner that the statement and cross -examination of plaintiff witnesses were going on. The petitioner who is a heart patient was attending the case on each date. On 2 -2 -1999 he felt pain in chest and headache. He was carried to S.S.P.G. Hospital where he was examined by Dr. S.A. Ansari who advised him to take complete bed rest. He states that the plaintiff was cross -examined, but it could not be finished, hence the Court fixed 3 -2 -1999. Since he was ill he could not attend on 3 -2 -1999. He submitted medical prescriptions of Hospital, medical certificate of the doctor and medical examination reports in the trial Court, which are unrebutted. They are not denied by the plaintiff respondents and that both the Courts below have failed to discuss these documents filing of which is not denied in the counter affidavit.
(3.)LEARNED Counsel for the petitioner has further submitted that no application has been filed or moved by the plaintiff -respondent for examination of the concerned doctor and as such ex parte decree was wrongly passed. He also states that the lower appellate Court has wrongly placed reliance on the case of Smt. Sudha Devi v. M.P. Narayanan and others, AIR 1988 Supreme Court 1381. In that case the final evidence was given through affidavit for passing of decree; whereas the restoration application was decided on the basis of affidavit, as per amended Rule XIX, of Order 19 CPC. It is submitted that the previous conduct of a party should not be sole criteria in deciding restoration application and has placed reliance in Rajendra Prakash and others v. Guari Shankar and others, 1990 R.D. 505 (D.B.). It is also stated that under similar facts and circumstances, the Hon'ble Supreme Court in G.P. Srivastava v. R.K. Raizada and others, (2000) 3 Supreme Court Cases 54, has held that for setting aside ex parte degree within statutory period, the Courts have wide discretion and thus expression must be construed as on classic expression. Paragraphs 6 and 7 of the judgment as under : (6) The trial Court did not accept the pleas raised by the appellant and found that the absence of the appellant or his Counsel in the Court on 10 -3 -1983 was not for a just of sufficient cause. The filing of the medical certificate was not disputed but the same was not relied on as it was found to have been obtained from a private doctor and not from a Government doctor. The High Court also did not accept the contentions of the appellant and noticing his previous conduct rejected the revision petition refusing to set aside the ex parte decree passed against him.
(7) Under Order IX, Rule 13 CPC. An ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Unless sufficient cause is shown for non -appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 CPC has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have an wide discretion in deciding the sufficient cause keeping in view the particular facts and circumstances of each case. The sufficient cause for non -appearance refers on the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause†is made out for non -appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.
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