Mehtar vs Musammad Janki

R.S. Garg, J.—Against dismissal of the application filed under Order 9 Rule 7 C.P.C. (which in fact in an application under order 9 Rule 8 C.P.C.), the appellant plaintiff has filed the present appeal Under Order 43 Rule 1 C.P.C.

The brief facts leading to the present controversy are, that the appellant filed Civil Suit No. 27-A/87 against the present respondent seeking a divorce on the ground of adultery. On 13th September, 1987 on ex-parte decree was granted in favour of the present appellant but, as an application under Order 9 Rule 13 C.P.C. was filed and ultimately allowed, the said ex-parte decree was set-aside. The case was fixed on 7.10.1987 before the Trial Court but none presented on behalf of the appellant, the suit was dismissed under the provisions of Order 9 Rule 8 C.P.C.

The appellant thereafter on 13.10.1987 filed an application for restoration of the suit. It appears from the record that the said application was ready on 12.10.87 but however, was filed on 13.10.87 along with the application affidavit of Teekaram, appellant Mehtar and the certificate of the Doctor were filed. On notice the respondent appeared before the Court contested the application and submitted that there was no sufficient cause on part of the appellant for non-appearance when the suit was called on for hearing and therefore the Suit was rightly dismissed The learned Court below recorded the evidence of the parties and after hearing them rejected the application. Hence this appeal by the appellant under Order 43 Rule 1 C.P.C. wherein he has challenged the Order dated 6.8.1988 passed in M.J.C. No. 33/87.

It was contended on behalf of appellant that there was sufficient cause for the non appearance of the appellant when the suit was called on for hearing and the learned Court below has taken to technical approach and going contrary to the record has rejected the application. According to the Counsel for appellant the sufficient cause is borne out from the records of the Court below and therefore the appellant is entitled to get his suit restored.

None appeared for the respondent.

The learned Trial Court has held that the appellant had to prove his own case and he can not take advantage of the weakness of the case of the respondent. On this principle there can not be any dispute. It is seen from the record of the Court below that the Court below has held that there are material contradiction in the statement of the appellant and his two witnesses. It appears that the Court below has not considered the evidence in ill true perspective.

Appellant Mehtar in his statement has stated that on 7.10.1987, suffering with fever he was to the Doctor and, made a request to him that his case was fixed before the Court on 7.10.1987, on which Doctor suggested and gave him a Medical Certificate. There after Gannu Bhau (P.W. 3. Gannu Lal) met him, to this witness the appellant requested that as he was not in a position to attend the Court the certificate he produced in the Court. In the cross-examination the witnesses made a statement that he was suffering with beilyache so also he was suffering with pain in legs and was down with fever also. According to this witness he recovered in 6 days and after 20 days he came to the Court and filed the application. PW-3 Gannu Lal corroborates the witness and he has clearly stated that Mehtar gave him the certificate with the instructions to give the certificate to his Counsel. According to this witness as he missed the bus from Ghurenda to Kanjai he came on cycle to Kanjai and came to Court, contacted Mehtar''s Counsel at about 12 noon. He was informed by the Counsel that the matter was already dismissed and an application will have to be filed. According to this witness he also informed the Presiding Officer. Nothing important has come in the cross-examination of this witness to dis-believe him. P.W. 1 Doctor Rampratap has stated, that the appellant Mehtar went to him for the treatment on 5.10.87. he found that Mehtar was suffering with high fever, looking to the ailment certain medicines were prescribed and complete bed rest was advised. This witness has testified the certificate Ex, P. 1. In the cross-examination, various questions were put to him, but nothing important would be brought out. The certificate states that Mehtar was suffering from virel fever since 5.10.1987, was under treatment of the Doctor and was advised complete bed rest for 4 days.

The non-applicant and her witness have already been disbelieved by the Court below and after going through the record. I also find that the statements were rightly dis-believed.

The Court below, has held that according to Mehtar he contacted the Doctor on 7.10.1987 but according to the Doctor he had examined the witness on 5.10.1987. On basis of this the Court below has come to the conclusion that there are material contradictions in the statement P.W. 1 and P.W. 2 Mehtar has nowhere stated that prior to 7.10.1987 he did not meet the Doctor for his medical examination. It appears that appellant rustic villager was not in a position to understand" the importance of the dates. In any case it is clear from the evidence on record that the appellant Mehtar was keeping unwell from 5.10.1987 to 8.10.1987 because of his sickness he could not appear before the Court on 7.10.87 when the case was called on for hearing. It can not be held that the appellant was negligent and there existed no sufficient cause in his favour. In the instant case there appear to be no contradictions in the statement of the appellant and his winess, The Court below was also not justified in taking such a technical view of the matter. Court below was also not justified for holding that 101 degree fever could not be termed to ailment preventing the appellant from making his appearance in the Court. It is surprising that the Court below was taking such a platonic approach to the ailment of the appellant.

I am of the opinion that the application for restoration of the suit ought to have been allowed. The Court below has committed an error, consequently the Order passed by the Court below is liable to be and is hereby set-aside.

Accordingly the appeal is allowed. The Court below is directed to restore the Suit No. 27-A/87 at its original number and decide the same in accordance with law. As none appeared oh behalf of the respondent, it is further directed that the Court below shall issue fresh notices to the respondent for appearance. The appellant shall remain present in the Trial Court on 6th March, 1993. There shall be no Order as to costs.