Leelawati vs Yajesh Garg and Others

Shiv Narayan Dhingra, J.—By this application under Order IX Rule 7 CPC defendant No. 2 has sought recalling of order dated 2nd March, 2009 whereby defendant No. 2 was proceeded ex parte. It is stated by defendant No. 2 that on that day defendant No. 2 was not well and was advised rest by the doctor.

I have perused the record and it is seen that the defendant No. 2 has been prolonging the trial of the case. On 1.09.2008 when the matter was fixed before the Joint Registrar, none appeared for defendant No. 2 and the matter was re notified for plaintiff''s evidence on 5.11.2008. On 5.11.2008 again defendant No. 2 did not appear before the Joint Registrar and Joint Registrar listed the case before the Court for further directions on 2.12.2008. On 2.12.2008 also defendant No. 2 did not appear and the case was listed on 9.2.2009. On 9.2.2009 the matter was listed before Joint Registrar and the defendant No. 2 appeared in person but since list of witnesses and affidavit of evidence was not filed by the plaintiff, the learned Joint Registrar fixed the matter before the Court on 2.3.2009. Again defendant No. 2 did not appear before the Court and was proceeded ex parte and thereafter the matter was listed for ex parte evidence.

The medical certificate filed by defendant No. 2 is for a disease of gastro enteritis. No treatment record has been filed by defendant No. 2 as to since when he was taking treatment. The medical certificate issued by the doctor specifically mentions at the bottom that the certificate was not for medico-legal purpose. It is obvious that the certificate procured by defendant No. 2 was just to take an excuse of non appearance. Looking into the conduct of defendant No. 2 of not appearing repeatedly before the Joint Registrar and the Court, the application of defendant No. 2 is allowed subject to cost of Rs. 5,000/-.

CS(OS) No. 962/2002

List the matter before the Joint Registrar for cross examination of witnesses on 16th February, 2010.