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Madhya Pradesh High Court · body

2001 DIGILAW 619 (MP)

Harprasad v. Kishorilal

2001-08-20

S.S.JHA

body2001
Short Note Heard on admission. An ex-parte decree is passed against one Harprasad. The decree was passed on 4.5.1994. An application for setting aside ex-parte decree and for condonation of delay in setting aside the decree was filed on 10.5.1995. The application under Order IX Rule 13, CPC and under Section 5 of the Limitation Act is not supported by an affidavit. Even then the Court entertained the application. It was mentioned by the petitioner that the petitioner met an accident and he was unable to move out of bed. Petitioner is a poor person, therefore, he could not get himself treated in hospital and he was taking treatment at his residence. The trial Court considered the question whether the petitioner was unable to move out of bed and was prevented by sufficient cause from not filling application for setting aside ex-parte decree before the Court within time. It has been stated that in June, 1993 Harprasad suffered a fracture. However, in the order sheet of the civil suit it is mentioned that the petitioner had attended the hearings in the civil suit prior to 11.2.1994. He was proceeded ex-parte on 11.2.1994. Petitioner was regularly appearing before the Court before 11.2.1 994. Respondent has filed order sheets to demonstrate that Harprasad was required to attend Criminal Court, which was attended by him on 27.7.1993, 22.9.1993, 20.10.1993, 21.12.1993, 27.2.1994 and 28.3.1995 and to demonstrate that the defendant had attended the Court after 11.2.1994 when he was proceeded ex-parte on. Considering these facts, the Court came to the conclusion that since the petitioner was attending the Court. Therefore, his evidence that he was confined to bed cannot be believed. The trial Court has also considered that application for condonation of delay is not supported by an affidavit and considering the evidence on record, finding has been recorded by both the Courts below that Harprasad had failed to establish that he was prevented by sufficient cause from appearing in Court when the ease was called for hearing. In view of concurrent findings of facts and cogent reasons assigned by the Courts below, the revision has no merit and is dismissed summarily.