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2008 DIGILAW 276 (CHH)

E. RAMENDRA RAO v. RADHAN MOHAN AGRAWAL

2008-09-25

D.R.DESHMUKH

body2008
ORDER 1. Heard. 2. This appeal arises out of the order dated 09-02-2001 passed by the VIth Additional District Judge, Bilaspur in M.J.C.No.2/2000 whereby an application under Order 9 Rule 9 c.P.C. filed by the appellant/plaintiff for restoration of Civil Suit No.26-A/1999 which was dismissed in default on 03-01-2000, was rejected. 3. Brief facts are that Civil Suit No.26-A/1999 filed by the appellant/plaintiff for eviction and arrears of rent against the respondents, was fixed for evidence on 03-01-2000. The appellant/plaintiff remained absent. Consequently, the suit was dismissed in default of the appellant. An application under Order 9 Rule 9 C.P.C. was filed by the appellant/plaintiff on 17-01-2000 for restoration on the ground that he was ill on 03-01-2000. An affidavit and medical certificate was also filed in support of the application. The appellant/plaintiff did not examine the doctor who had issued the medical certificate but stated on oath that he was ill, and therefore, could not appear before the Court on 03-01-2000. No evidence was led by the respondents in rebuttal of the testimony of the appellant/plaintiff. 4. Learned counsel for the appellant/plaintiff argued that the appellant had testified on oath that he was ill on 03-01-2000, and therefore, could not appear before the Court. It was further submitted that the respondents herein did not lead any evidence in rebuttal. Learned counsel for the appellant urged that a liberal view and pragmatic approach ought to have been taken and the application under Order 9 Rule 9 C.P.C. ought to have been allowed. 5. On the other hand, Shri Sanjay S. Agrawal, learned counsel for respondent No.1 argued in support of the impugned order and urged that in the event, the appeal is allowed, heavy cost should be imposed on the appellant/plaintiff. 6. Having heard rival submissions, I have perused the impugned order. The testimony of the appellant/plaintiff that he was ill on 03-01-2000 is supported by the medical certificate filed in support of the application under Order 9 Rule 9 C.P.C. No evidence in rebuttal was led by the respondents/defendants. The appellant/plaintiff would not nave gained anything by deliberately remaining absent on the date of hearing of the suit i.e., on 03-01-2000. The testimony of the appellant/plaintiff that he was ill on 03-01-2000 is supported by the medical certificate filed in support of the application under Order 9 Rule 9 C.P.C. No evidence in rebuttal was led by the respondents/defendants. The appellant/plaintiff would not nave gained anything by deliberately remaining absent on the date of hearing of the suit i.e., on 03-01-2000. The learned VIth Additional District Judge, Bilaspur ought to have considered this aspect and ought to have taken a liberal view while deciding the application under Order 9 Rule 9 C.P.C. promptly filed by the appellant/plaintiff which was duly supported by the affidavit of the plaintiff and the medical certificate of illness. I am of the considered opinion that the order passed by the learned Vlth Additional District Judge, Bilaspur rejecting the application under Order 9 Rule 9 C.P.C. is contrary to law and deserves to be set aside. 7. In the result, the appeal is allowed. The impugned order dated 09-02-2001 passed by the Vlth Additional District Judge, Bilaspur is set aside. The application under Order 9 Rule 9 C.P.C. filed by the appellant/plaintiff is allowed subject to cost of Rs.5,000/- payable to the respondents/defendants to be deposited in the Court below within thirty days from today. Appeal Allowed.