E. Ramendra Rao vs Radhan Mohan and Others

D.R. Deshmukh, J.

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.

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.

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 here did not lead any evidence in rebuttal. Learned counsel for the appellant urged that a liberal view and pragmatic approach have been taken and the application under Order 9 Rule 9 C.P.C. ought to have been allowed.

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.

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 have 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 VIth 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.

In the result the appeal is allowed. The impugned order dated 09-02-2001 passed by the VIth 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. 5000/- payable to the respondents/defendants to be deposited in the Court below within thirty days from today.