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1988 DIGILAW 643 (ALL)

Associated Industrial Corporation v. Khandelvval Packing Products

1988-07-22

N.N.MITHAL

body1988
JUDGMENT N.N. Mithal, J. - This is defendants' appeal directed against the order dismissing the application for setting aside the ex-parte decree dated 12th February, 1987. 2. It appears that there were several defendants in the suit and after a long delay, service could be effected on them. Even after the finding of the written statement, several adjournments were taken and every effort was made by them to delay the hearing of the suit. Ultimately 19th January, 1987 was fixed for hearing, on which date, the defendants remained absent. The next date fixed was 12th February 1987 and on that date again the defendants absented. The court, therefore, passed ex-parte decree on that date. In the application and the affidavit in support of the application for setting aside the ex-parte decree, it was alleged that the appellant was suffering from Jaundice on both the dates fixed it was only on 15-2-1987 that he had recovered. He also filed a medical certificate of Dr. K.K. Kapoor dated 20-2-1987 along with his affidavit. The court below has rejected this medical certificate on two grounds. Firstly it is said that the signatures of the patient have not been attested by the doctor and secondly the medical certificate is in respect of some other disease than the one mentioned in the affidavit. It has been urged by the learned counsel that in the affidavit it was mentioned that Sudhir Kumar Agarwal, deponent, was suffering from jaundice while in the certificate the disease is mentioned as Hepatitis. In fact jaundice is one of the forms of Hepatitis and the view of the court below that there was some variance between the two does not appear to be correct. When in the affidavit the disease was mentioned as jaundice it was in the general form and in the medical Certificate the doctor has given its medical name, which is not used in common parlance. On the other question also I do not find that merely because the signature has not been separately attested, it does not mean that the certificate is a forged one. On the other question also I do not find that merely because the signature has not been separately attested, it does not mean that the certificate is a forged one. In fact the medical certificate itself bears the signature of Sudhir Kumar Agarwal and in the last line of the certificate, the doctor has clearly mentioned as below : "The signatures are given below." The sentence itself was enough attestation of the fact that the signature of Sudhir Kumar Agarwal on the certificate were of the patient, in these circumstances, both the grounds on which the learned court below has rejected this affidavit and the certificate are not sustainable. 3. The court below has further said that there were other defendants also who could appear and no reasons for their absence have been given. Here again the learned court below appears to be wrong since the paragraph 6 of the affidavit it is clearly mentioned that the other defendants Gauri Shankar and Ravi Kumar Agarwal were also ill during the relevant period. These facts have not been controverted by the plaintiff by means of an affidavit or otherwise. In view of the above circumstances, it is quite clear that there was enough evidence in support of what the defendants had to say in the matter and their plea should have been accepted by the court below. 4. However, it does appear to me that there has been a distinct effort on the part of the defendants to delay the trial of the suit. While allowing the application under Order 9 Rule 13 C.P.C. the Court can impose conditions as to costs and payment into court or otherwise as it may think fit. The present is an appropriate case in which conditions ought to be imposed on the appellants apart from awarding costs. In my opinion it would be just and reasonable that the appellants should be directed to deposit of the amount due under the decree along with interest and cost as of today within a period of three months in the court below. The appellants shall make this deposit in two equal instalments the first of which should be. made on or before 20-9-1988 and the second one by 25-10-1988. As for the remaining half the appellants shall furnish adequate security to the satisfaction of the trial court within two months from today. The appellants shall make this deposit in two equal instalments the first of which should be. made on or before 20-9-1988 and the second one by 25-10-1988. As for the remaining half the appellants shall furnish adequate security to the satisfaction of the trial court within two months from today. The amount deposited as aforesaid shall be placed by the Court in a Fixed Deposit carrying interest in a Nationalised Bank for an initial period of three years which shall be renewed from time to time before its enquiry during the pendency of the suit. The amount so deposited shall be subject to such orders as may be passed in this behalf at the time of disposal of the suit. In addition to the above, the appellants shall also pay within two months from today Rs. 500/- as costs to the plaintiff-respondent. Should the appellants fail to comply with any of the conditions laid down above, the appeal shall stand dis-missed. There will be order as too costs. 5. Subject to the above, the appeal stands disposed of. 6. A certified copy of the order may be supplied to the parties payment of usual charges within three days.