Mrs. Fathima Beebi vs Mr. V. Anwar Basha

S. Sardar Zackria Hussain, J.—The defendant in the suit O.S. No. 194 of 1996 on the file of the District Munsif Court, Thiruppur is the

revision petitioner. The revision petition is directed against the conditional Order dated 16.11.1999 and made in I.A. No. 1594 of 1997 which was

filed under Order 9 Rule 9 and Section 151 C.P.C. for restoration of the above suit which was dismissed for default on 30.6.1997.

The respondent herein filed the suit O.S. No. 190 of 1990 in the Sub Court, Thiruppur for specific performance of contract of sale on

30.4.1990. As per written agreement dated 28.10.1989, the revision petitioner agreed to convey the suit property for Rs. 26,400/- and that she

also received a sum of Rs. 5,000/- at the time of the agreement. The balance sale consideration amount was agreed to be paid on completion of

sale before 30.1.1990 and since the revision petitioner failed to perform her part of contract, after causing lawyer notice on 4.4.1990, the suit was

filed. The suit was resisted in the written statement filed on 4.11.1990 denying the agreement and stating that the suit agreement was forged.

It appears that the suit O.S. No. 190 of 1990 on the file of the Sub Court, Thiruppur was transferred to the file of the District Munsif Court,

Thiruppur and the same was taken on file in the District Munsif Court, Thiruppur and renumbered as O.S. No. 194 of 1996. It also appears that

on 30.6.1997, the suit was listed. On that date the counsel for the plaintiff reported no instruction and so the suit was dismissed for default.

The petition in I.A. No. 1594 of 1997 was filed on 8.7.1997 for restoration of the suit O.S. No. 194 of 1996 which was dismissed for default

on 30.6.1997 stating that few days before the hearing date of the suit, since he had fever and headache, on consulting the doctor and as per the

doctor''s advice, he took medicine and by taking medicine he fell sick and bed ridden due to such medicine allergy and because of which he was

unable to attend the Court on the hearing date of the suit and he was unable to inform his counsel and when he contacted his advocate on 8.7.1997

he came to know about the dismissal of the suit and he filed the said petition on the very same day.

The said petition was opposed in the counter denying the illness of the plaintiff as stated and further stating the prescription given by the doctor

and the medicine bills as per which medicines have been purchased, have not been produced and further stated that the plaintiff was dragging on

the proceedings despite the fact the suit was transferred from the file of the Sub Court, Thiruppur to the file of the District Munsif Court, Thiruppur

where it was taken on file and that even in the District Munsif Court, the plaintiff did not attend the Court regularly. It is also set out that the

certificate of the doctor had not been produced by the plaintiff.

No document was filed on either side and no witness was examined on either side. The trial Court in the Order which is under challenge in this

Civil Revision Petition, though stated that there have been no truth in the affidavit of the plaintiff and the reasons submitted for his non-appearance

on 30.6.1997 are unacceptable, however, while stating that in the interest of justice, the petition can be allowed, so that an opportunity can be

afforded to him as a last chance and allowed the said petition on the plaintiff pays a sum of Rs. 250/- as costs. Such Order was passed on

16.11.1999. Time was granted till 7.12.1999 to pay the cost amount of Rs. 250/-. Though the plaintiff was ordered to pay the cost of Rs. 250/- to

the respondent, on the deposit of the cost of Rs. 250/- in the Court, the petition I.A. No. 1594 of 1997 was allowed on 8.12.1999 and the suit

was restored to file on 8.12.1999 and it was posted to 13.12.1999 for further P.Ws. evidence and on 13.12.1999, a petition was filed by the

counsel for the defendant that a Civil Revision Petition is to be filed against the Order in I.A. No. 1594 of 1997 and so it was adjourned to

11.2.2000 and from that date to 17.2.2000, 2.3.2000, 16.3.2000, 27.3.2000 and 11.4.2000 and on 11.4.2000, a memo was filed that the

proceedings were stayed by this Court in this Civil Revision Petition. This Civil Revision Petition is filed by the defendant against the Order allowing

the said I.A. No. 1594 of 1997 filed for restoration of the suit.

The point for consideration is as to whether the conditional Order dated 16.11.1999 made in I.A. No. 1594 of 1997 for restoration of the suit

O.S. No. 194 of 1996 on the file of the District Munsif Court, Thiruppur dismissed for default has been correctly made.

The learned counsel for the revision petitioner/defendant argued that no sufficient grounds had been made out for restoring the suit which was

dismissed for default on 30.6.1997. Further, the learned counsel for the revision petitioner pointed out that though it is stated in the affidavit filed in

support of the petition in I.A. No. 1594 of 1997 that since the respondent had fever and headache, on consulting the doctor and as per the

doctor''s advice, he took medicine and by taking medicine he fell sick and bed ridden due to such medicine allergy and because of which he was

unable to attend the Court on the hearing date of the suit, the respondent has not examined himself and also not marked the certificate issued by the

doctor as well the medical bills to show that actually he purchased the medicines during the relevant time for the said illness. The learned counsel

also argued that despite the fact that the suit O.S. No. 190 of 1990 was filed originally in the Sub Court, Thiruppur and on transfer to the file of the

District Munsif Court, Thiruppur and taken on file as O.S. No. 194 of 1996, the respondent as plaintiff was dragging on the proceedings. The

learned counsel for the revision petitioner relied on the decision of this Court in the case of Gomathi Ammal Vs. Madhusoodanan Nair and

Another, in which it is observed in paragraph 7:-

Failure to adduce evidence for non-appearance and seeking condonation of delay on the vague allegation of illness and mere production of

medical certificate are not sufficient to condone the delay. The party should get into witness box to speak about case as evidenced by medical

certificate"".

The other decision relied on for the revision petitioner is M. Selvi - v. - Rangachari reported in 1998-2 Law Weekly 572 in which it is observed by

this Court in paragraph 6:-

When specifically the plea has been taken that the petitioner was present in the court premises on 16.12.94 on the date when the applications

were listed, it is the duty of the petitioner to establish her case by producing all the material particulars. Considering the defence taken by the

petitioner in her written statement, the petitioner is to be given opportunity to examine the doctor in Order to prove her illness.

The learned counsel for the respondent/plaintiff argued that despite the fact, the suit agreement was entered into between the defendant/revision

petitioner and the plaintiff/respondent, since the suit was resisted that the agreement was forged, the respondent as plaintiff filed I.A. No. 1334 of

1993 to send the photo copy of the suit agreement with the admitted signatures of the defendant to the Handwriting Expert for comparison and as

per Order in that petition dated 3.9.1993, the respondent also deposited a sum of Rs. 3,500/- towards Expert fee and the Expert after comparison

also filed his report on 12.6.1997. In this regard the learned counsel for the respondent/plaintiff pointed out that in fact, the trial of the suit was

commenced in the District Munsif Court, Thiruppur and P.W. 1 was examined in full and Exs.A-1 to A-5 were marked on his side and when it

was posted for further evidence on the side of the plaintiff, the I.A. No. 1334 of 1993 was filed on 26.8.1993 in which Handwriting Expert report

was obtained on 12.6.1997 on which date, the I.A. No. 1334 of 1993 was closed. On transfer of the said suit to the District Munsif Court,

Thiruppur, it was included in the list on 30.6.1997 on which date, since the respondent due to illness set out above was unable to attend the Court,

the suit was dismissed for default. The trial Court observed that though the reasons stated in the petition in I.A. No. 1594 of 1997 are not

convincing, with a view to afford an opportunity, to complete the trial of the suit, the said petition was allowed as per the conditional Order dated

16.11.1999 and as such, the said Order requires no change.

In the suit filed for specific performance in the Sub Court, Thiruppur, the trial was commenced and the plaintiff examined himself as P.W. 1 in

full and Exs.A-1 to A-5 were marked on his side on 17.8.1993 and for further evidence the suit was adjourned to 26.8.1993. On that date, the

plaintiff filed I.A. No. 1334 of 1993 to send the photo copy of the suit agreement with the admitted signatures of the defendant to the Handwriting

Expert for comparison and as per Order in that petition dated 3.9.1993, the respondent also deposited a sum of Rs. 3,500/- towards Expert fee

and the Expert after comparison also filed his report on 12.6.1997. In the mean time the suit itself was transferred to the file of the District Munsif

Court, Thiruppur as per Order of the District Court, Coimbatore dated 28.11.1995, where the suit was renumbered as O.S. No. 194 of 1996

and it was posted on 10.6.1996. After receipt of Handwriting Expert report on 12.6.1997, the I.A. No. 1334 of 1993 was closed and the suit

was again listed on 30.6.1997 on which date, it appears the respondent/plaintiff was unable to attend the Court, because of which the suit was

dismissed for default. In view of the fact that the plaintiff had fever and headache for which he took treatment and on consulting the doctor and as

per the advice, he took medicine and by taking medicine he fell sick and bed ridden due to such medicine allergy and because of which he was

unable to attend Court on the hearing date of the suit and that he was unable to inform his counsel and when he contacted his advocate on

8.7.1997 he came to know about the dismissal of the suit and he filed the said petition on the very same day to restore the suit and as such the

Order of the trial court in allowing the application in the interest of justice, in that the trial was already commenced and P.W. 1 was examined in

full, it is justifiable in the facts and circumstances of the case.

The fact remains that since the suit for specific performance was resisted by the revision petitioner as defendant that the suit agreement was

forged document, the respondent/plaintiff filed I.A. No. 1334 of 1993 to send the photo copy of the suit agreement with the admitted signatures of

the defendant to the Handwriting Expert for comparison and as per Order in that petition dated 3.9.1993, the respondent also deposited a sum of

Rs. 3,500/- towards Expert fee and the Expert after comparison also filed his report on 12.6.1997 on which date the above I.A. No. 1334 of

1993 was closed and it was listed on 30.6.1997 again in the list on which date it appears the respondent/plaintiff was absent. The very fact that the

plaintiff was examined in full and marked Exs.A-1 to A-5 and also took steps to send the suit agreement for comparison of the suit agreement of

the defendant with admitted signatures in which it is admitted that the Expert opinion was also received, would go to show that the respondent was

diligent enough to proceed with the trial of the suit. If it was his intention to delay the proceedings the plaintiff could not have filed the said petition

to send the suit agreement for comparison with the admitted signatures of the defendant. If really the plaintiff was well and fit enough to attend the

Court for the purpose of the case on 30.6.1997, certainly he could have attended. No doubt he has not examined the doctor who gave treatment

to him and also not marked the certificate issued by the said doctor as well the medical bills for the purchase of medicines by him because of which

he became allergy and due to which reason he was bed ridden and unable to attend the Court on 30.6.1997. He has also not examined himself.

But considering the fact, the Order in I.A. No. 1594 of 1997 was made on 16.11.1999, to restore the suit which was dismissed for default on

30.6.1997, on payment of cost of Rs. 250/- to the defendant and if directed to examine the doctor and also mark necessary documents in proving

the sickness because of which he could not attend the Court on 30.6.1997, the proceedings will be further protracted, it would be just and proper

if the Order of the trial Court made in I.A. No. 1594 of 1997 is modified by ordering cost of Rs. 3,000/- instead of Rs. 250/- as ordered by the

trial Court and further ordering to pay the balance cost of Rs. 2,750/- within one month from today payable by the respondent/plaintiff to the

revision petitioner/defendant, failing which, the I.A. No. 1594 of 1997 is to be treated as dismissed.

In the result, the Order of the trial Court dated 16.11.1999 made in I.A. No. 1594 of 1997 is modified, that the respondent/plaintiff is to pay a

sum of Rs. 3,000/- towards cost instead of Rs. 250/- as ordered by the trial Court in the said petition to the revision petitioner/defendant directly

viz., the balance cost of Rs. 2,750/- within one month from today, failing which, the petition I.A. No. 1594 of 1997 is to be treated as dismissed.

This Civil Revision petition is disposed of accordingly. The trial Court is further directed to dispose the suit by the end of April, 2004.

Consequently, the petition in C.M.P. No. 4538 of 2000 is closed.