Guru Dutt Gupta vs Gauri Shanker and Co.

M.M. Ismail, J.

(1) This petition u/s 25 of the Provincial Small Cause Courts Act, is filed against the order of the Additional Judge, Small Cause Court, Delhi, dated 13-ll-?9, dismissing the application of the petitioner under Order Rule 13, Civil Procedure Code. for setting aside an ex-parte decree passed against him. The respondent herein, filed suit No. 2687 of 1957 for recovery of Rs. 600.00 from the petitioner herein. The petitioner contested the suit. The evidence was recorded and on 29-5-59, the case was adjourned to 11-6-59 for the remained evidence. On 11-6-59, the petitioner herein did not appear and the Court passed an ex-parte decree.

(2) From the records what transpires is that after the case was adjourned on 29-5-59, the petitioner herein, went to Kota to attend to his business and there he fell ill, with the result, he was not able to return lo Delhi to attend to his case on 11-6-59. He obtained a medical certificate from the Medical Officer, Suraj Pur Dispensary, Kota of the Rajasthan Medical Department on 8-6-59 and sent the same by post to his council at Delhi on 9-6-59. However, it reached the counsel on 12-6-59. There after, on 13-6-59, the counsel for the petitioner herein filed the application under order 6 Rule 13, or setting aside the ex-parte decree; stating the circumstances referred to above. The learned Additional Judge, Small Causes Court, Delhi, by a process of curious reasoning by his order dated 13-11-59, dismissed, the petitioner has came up to this Court. It is better to extract the order of the learned Additional Judge in full. He held;-

GURUDatt has been examined as DW1. He has stated that he had gone to Kota where he fell ill, and Therefore, could not attend the court. No other independent witness has been produced to corroborate his statement. A medical certificate was received by post from Kota It is market Exhibit A. 1. This certificate has not been proved by the Medical Officer who gave it. Moreover, even the certificate shows that Guru Datt was not seriously ill. He was only an cut patient at the Hospital. In my opinion, there is no sufficient cause for setting aside the ex-parte decree. The significant thing that has to be noticed in this case is that the plaintiff who obtained the ex-parte decree, did not come to the Court to oppose this application for setting aside the ex-parte decree and it is also represented to me that the entire decretal amount was deposited by the petitioner herein into the Court. Not with standing these features, the learned Additional Judge proceeded to dismiss the application for the reasons recorded by him. This approach of the learned Additional Judge to the question is totally unwarranted and betrays a lack of appreciation of the proper judicial approach expected of him in such matters. I have seen the medical certificate itself. That certificate is dated 8. 6, 59 and stales that the petitioner herein was suffering from high blood-pressure and the medical officer was of opinion that he required two weeks rest and treatment. In the light of this, to say that the medical certificate showed that the petitioner herein was only an out-patient and was not seriously ill betrays a total ignorance and want of proper understanding of the contents of the medical certificate itself. A person suffering from High Blood Pressure on 8. 6. 59. , whether he was treated as an Out Patient or inpatient could not be expected to travel from Kota to Delhi and be present at Delhi on 1 1. 6. 59. when the Medical Officer was of the opinion that he required two weeks rest and treatment.

(3) The other ground given by the Learned Addition Judge is that no affidavit was filed by the petitioner, I have already indicated that the petition was filed by the counsel for the petitioner on 13.6.59 when the petitioner himself was not in Delhi. How could the learned Additional Judge expect the petitioner to file the affidavit on that day, passes one''s comprehension. As a matter of fact, when the petitioner sent the medical certificate by post from Kota on 9.6.59, he would have done so only with the object of obtaining an adjournment of the case and would not have anticipated that it would reach his counsel late and the case would not have anticipated that it would reach his counsel late and the case would be decided ex-parte on 11.6.59. The absence of the affidavit does not in any way, render the grounds mentioned in the petition or in the medical certificate untrue or even improbable. Lastly, the ground that has been relied upon by the learned additional Judge is that the certificate had not been proved by the Medical officer who gave it and no independent witness had been produced, The learned judge does not say that he found anything suspicious ex facie in the medical certificate or in the case of the petitioner. Hence it is a technicality with a vengeance that has been insisted upon by the learned Judge does not say that he found anything suspicious ex facie in the medical certificate or in the case of the petitioner. Hence it is a technicality with a vengeance that has been insisted upon by the learned Judge. Under these circumstances, I allow the revision petition and set aside the order of the learned Additional Judge and also set aside the ex parted decree passed by him I may also point out here that the case was in the list for several days before me and was taken up by me yesterday and remained part-heard and was so included in the list for to-day and no body has appeared for the respondent. I do not pass any order as to costs and direct the parties to appear before the additional Judge, Small Causes co on 7.4.67.