Gokul Chandra Maity v. Ananda Maity (Since Deceased) Manju Maity
2020-03-03
BISWAJIT BASU
body2020
DigiLaw.ai
ORDER : 1. This revisional application under Article 227 of the Constitution of India is directed against the order dated July 28, 2006 passed by the Learned Civil Judge (Senior Division), Tamluk, Purba Medinipur in Misc. Appeal No. 02 of 2003. The petitioners suffered the ex-parte decree dated May 23, 2000 in Title Suit No. 06 of 1998. 2. The petitioners filed an application under Order IX Rule 13 of the Code of Civil Procedure registered as J. Misc. Case No. 26 of 2000 before the Learned Civil Judge (Junior Division), 2nd Court, Tamluk. The Learned Trial Judge by the order no. 57 dated September 27, 2002 dismissed the said Misc. Case. The petitioners assailed the said order of the Learned Trial Judge in the connected miscellaneous appeal. The appeal Court below by the order impugned has dismissed the said appeal. 3. The petitioners in their application under Order IX Rule 13 of the Code contended inter alia that due to the illness of the petitioner no. 2 they could not take steps before the Learned Trial Judge when the matter was fixed for hearing. The petitioners to substantiate their said claim relied on a Medical Certificate. 4. The Learned Trial Judge disbelieved the explanation offered by the petitioners as the said Medical Certificate did not suggest that the petitioner no. 2 was bed ridden and was unable to move. The appeal Court below affirmed the said finding of the Learned Trial Judge. 5. No doubt there is break in the chain of explanation offered by the petitioners in their application under Order IX Rule 13 of the Code but the said Medical Certificate cannot be discarded altogether merely on the ground that the doctor who issued the said certificate has not advised complete bed rest to his patient. 6. Moreover, the interest-of-justice demands contested disposal of a lis, it is equally the demand of justice that the plaintiffs should be compensated with realistic costs. The order impugned for the aforesaid reason is set aside. 7. The ex parte decree dated May 23, 2000 passed in Title Suit No. 06 of 1998 is set aside subject to payment of costs of Rs. 50,000/- to be paid by the petitioners to the opposite parties within six weeks from date. The Title Suit No. 06 of 1998 is restored to its original file and number. 8.
7. The ex parte decree dated May 23, 2000 passed in Title Suit No. 06 of 1998 is set aside subject to payment of costs of Rs. 50,000/- to be paid by the petitioners to the opposite parties within six weeks from date. The Title Suit No. 06 of 1998 is restored to its original file and number. 8. The petitioners shall file their written statement within four weeks from date. CO 3988 of 2006 is disposed of with the above directions. No order as to costs. 9. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.