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2010 DIGILAW 2246 (ALL)

Shabbir Khan v. IIIrd A. D. J.

2010-07-29

SANJAY MISRA

body2010
JUDGMENT Hon'ble Sanjay Misra,J. - Heard Sri M.A. Qadeer learned Senior Counsel assisted by Sri Shamim Ahmad learned counsel for the petitioner. The cause list of old cases has been revised. None appears on behalf of the respondent nos. 3 and 4 however counter affidavit is available on record. The petitioner was a defendant in Suit no. 67 of 1987 pending in the court of First Additional Civil Judge, Kanpur Dehat, Kanpur whereas the respondent no. 3 and 4 were the plaintiffs. 2. According to Sri Qadeer the plaintiff respondent had filed a suit for injunction with respect to the land in question against the defendant petitioner wherein an order dated 12.11.1992 was passed by the Trial Court to proceed exparte against the defendants. The petitioner alleges to have filed an application for recall of the order along with an application under Section 5 of the Limitation Act which was rejected by the Trial Court by the order dated 12.4.1993 and the appeal there against being Misc. Appeal No. 15 of 1995 has also been dismissed by the judgment and order dated 21.1.1995. The petitioner is aggrieved against the said orders. 3. Sri Qadeer has submitted that while considering the application under Section 5 of the Limitation Act the Trial Court has found that the petitioner could not sufficiently explain the delay in filing the application on a day to day basis. It has disbelieved the two medical certificates filed by the petitioner to show that he was ill and has therefore rejected the application under Section 5 of the Limitation Act as also the application to set aside the exparte order. He states that the petitioner had given a clear explanation that he could not appear on 12.11.1992 because he was arrested on 7.11.1992 and could get bail only on 25.11.1992 whereafter he fell ill and after recovering from his illness he approached his lawyer who after inspection of the file, filed restoration application alongwith condonation delay application on 31.7.1992. 4. Sri Qadeer has also submitted that the delay of two months and 20 days in filing the application for recall of the exparte decree ought to have been considered liberally more particularly when on the date when the order to proceed exparte was passed i.e. 12.11.1992 the petitioner was in custody and was prevented from appearing in court. 4. Sri Qadeer has also submitted that the delay of two months and 20 days in filing the application for recall of the exparte decree ought to have been considered liberally more particularly when on the date when the order to proceed exparte was passed i.e. 12.11.1992 the petitioner was in custody and was prevented from appearing in court. He states that his non appearance was not a default of the petitioner but having been arrested he was prevented from appearing in court. Under such circumstances it is submitted that if sufficient explanation has been given for non appearance on 12.11.1992 then in order that the dispute between the petitioner defendant and the plaintiff respondents be decided on merits the court ought to have taken a liberal approach. 5. According to Sri Qadeer the petitioner was unwell and therefore instead of filing prescription of the doctors prescribing medicine for his ailments he has obtained the certificate from the doctor regarding bed rest for the period of six months during which the petitioner continued to be unwell and under treatment of those doctors. He also states that in so far as the evidence of his being in custody from 7.11.1992 to 25.11.1992 it is available but the petitioner had filed an affidavit stating those facts under bonafide belief that the affidavit would be believed. 6. He therefore states that interest of justice would require that the petitioner should not be un suited in a suit filed against him for injuction relating to the land in question and the courts below ought to have adopted a liberal approach while considering his application for condonation of delay. 7. Having considered the submission of learned counsel for the petitioner and perused the counter affidavit filed on behalf of the respondents as also the impugned orders both the Courts have found that the petitioner has not filed any evidence to show that he was arrested on 7.11.1992 and was granted bail on 25.11.1992. It has therefore recorded that the non appearance of the petitioner on 12.11.1992 when the matter was directed to proceed exparte against him is not sufficiently explained. The Court's then took into account the medical certificates filed by the petitioner being Paper no. It has therefore recorded that the non appearance of the petitioner on 12.11.1992 when the matter was directed to proceed exparte against him is not sufficiently explained. The Court's then took into account the medical certificates filed by the petitioner being Paper no. 5 ga and 5 ga-2 and it held that the mere fact that the certificate indicates that the petitioner was required to be on bed rest from 15.1.1993 to 15.6.1993 does not indicate as to what disease he was suffering with and hence since the certificate itself was not very clear and the doctors name itself was not legible the same was disbelieved. Both the aforesaid finding of the Court's appear to have substance because neither the petitioner had filed any evidence to show that he was arrested on 7.11.1992 and granted bail on 25.11.1992 nor the medical certificates indicated the illness from which the petitioner was suffering. 8. From the aforesaid submission it is quite clear that the petitioner has been negligent in not filing evidence of his being in custody and the prescriptions of the doctor to show that he had some ailment due to which he was required to be on bed for the period indicated in the medical certificate. In case the petitioner had filed those evidences the result of his application for condonation of delay might have been otherwise. The impugned orders have been passed due to no evidence of non appearance and delay in filing application to set aside an exparte decree. But if the petitioner states that he has credible evidence on both the counts but he did not produce it under a bonafide belief he can always be given an opportunity to bring those evidences on record. The petitioner is faced with an exparte decree. Adverse consequences have visited him regarding his claim over the land in dispute. Therefore to ensure that he is given one last opportunity to face the proceedings by producing evidence in his possession for the two reasons shown by him in his affidavit this court finds that he can be granted that opportunity. 9. Adverse consequences have visited him regarding his claim over the land in dispute. Therefore to ensure that he is given one last opportunity to face the proceedings by producing evidence in his possession for the two reasons shown by him in his affidavit this court finds that he can be granted that opportunity. 9. Therefore in the interest of justice it would be appropriate that the suit itself be decided on merits provided the petitioner can show to the court below that he was prevented by sufficient cause for not appearing on 12.11.1992 and the delay caused in making the restoration application was due to some bonafide reason. This is more so because the petitioner has in this writ petition averred that there is record available to prove his detention in custody from 7.11.1992 to 25.11.1992. Further the petitioner's case is that he had filed the medical certificate prescribing bed rest. He states that the prescription prescribing medicine to show his ailment was available with him which was not filed in the bonafide belief that the bed rest medical certificate would suffice for the purpose of his explanation to condone the delay. 10. Consequently the impugned orders dated 12.4.1993 passed by the respondent no. 2 and 21.10.1995 passed by the respondent no. 1 are set aside by providing that the petitioner may be given an opportunity to produce the evidence of his being in custody for the period 7.11.1992 to 25.11.1992 and produce the doctor's certificate regarding the ailment which he was suffering and the treatment which he had been given during the period thereafter up to the date he approached his counsel for inspection of the file and moving the application for setting aside the exparte decree. The Trial Court would give opportunity to the plaintiff respondent nos. 3 and 4 to contest the said evidence filed by the petitioner and proceed to pass orders in accordance with law on the application for condonation of delay made by the petitioner and the recall application. 11. The writ petition stands allowed as above. 12. No order is passed as to costs.