The onus is on the person alleging disability under Order 32, Rule 15 CPC to furnish appropriate materials for enabling the Court to hold the required enquiry.

Mookherjee, J.:

1. The present appeal is at the instance of the substituted heirs of the sale defendant in a suit for eviction, which had been decreed exparte on 2nd August, 1982 and for setting asice of which, inter alia, an application under Order 9, Rule 13 read with Section 151 of the Code of Civil Procedure had been preferred giving rise to Misc. Case No. 624 of 1982. The learned Munsiff, by the impugned Order, rejected the Misc. Case and such order is under challenge in the present Miscellaneous Appeal. The ground, which had been pleaded as sufficient cause for non-appearance of the sole defendant on the date the ex parte decree had been passed, appears to be intermittent insanity of the sale defendant, who has since died.

2. It appears from the materials on record that on 12th April, 1982, an application was made on behalf of the defendant, on verification by the defendant's brother, bringing to the notice of Court, the alleged insanity and the Court fixed 21.4.82 for furnishing particulars but no such particulars having been furnished show-cause was issued against the defendant, which again, not having been complied with, the matter was directed to appear for Orders on 12th June, 1982, in presence of learned Advocates for the parties. On the date, when the matter appeared for such Orders, none was present on behalf of the plaintiff but the learned lawyer for the defendant was present and a hazira was filed on behalf of the defendant and on that date the Court fixed up the hearing of the suit on 2nd August, 1982 when the ex parte decree had been passed.

3. In rejecting the Misc. Case the Trial Court had held, inter alia, the following:

(i) The alleged insanity was untenable.

(ii) There was nothing in Court Records, except the petition dated 12.4.82 about the mental or insanity or unsoundness of mind of the petitioner.

(iii) Between March 1982 and April 1982, the Petitioner was in Bangiya Unmad Ashram but what occurred thereafter was not established

(iv) Defendant's brother who c1aimed to have been looking after the case was aware of the date of exparte bearing. There was no sufficient cause.

(v) Since legal representatives of the petitioner were available, brother had no locus standi to initiate the Misc. Case.

(vi) Misc. Case was barred by limitation.

4. We have heard Mr. Banerjee, in support of the appeal and Mr. Roy Chowdhury, on behalf of the contesting plaintiff/respondent. It appears admitted on the records of the case that since the institution of the suit in 1917 till the making of the application, pleading insanity of the defendant, the defendant had himself been taking steps by filing written statement, by engaging lawyer and by filing affirmed affidavit by way of objection to the plaintiff's application for injunction. Only in connection with the application under Order 9, Rule 13 of the Code of Civil Procedure, certain documents were filed to substantiate the case of mental derangement of the' defendant but all such documents were posterior to the date of exparte decree in the suit and during the pendency of the suit no such material had been brought to the notice of the Court, though most of such documents remained unproved. Certain certificates of Doctors under whose treatment the petitioner was alleged to have remained had been marked as Ext. 1/1,2 series, 3 and 4 but such Exhibits had no relevance on the date of ex parte decree. The oral testimony of defendants brother was inconsistent with the conduct of the defendant himself in the suit in the matter of filing written statement and written objection as pointed out by Mr. Roy Chowdhury for the Respondent/Plaintiff. The defendant's brother, who deposed in the Misc. Case, made admissions about the fact that from the very beginning of the trial in 1976, he bad been looking after the case, had been paying rent for the tenancy with regard to the suit property, which stood in the name of the defendant, and that the date of exparte hearing, as fixed by the Co