Acceptance of ground of illness as a valid reason for setting aside dismissal of a suit for default.

Amitava Roy, J.

1. Heard Mr. S. Sharma, learned counsel for the petitioner. Also heard Mr. P.S. Deka, learned counsel Opp. Parties/plaintiffs.

2. The order under challenge in the instant Civil Revision petition is one setting aside the order dated 14-10-1993 dismissing the Title suit No. 112/1992 for default and consequently restoring it to file. The suit was brought by the Opp. Parties against the petitioner which was dismissed for default on 14.10.1993 as the Opp. Parties/plaintiffs failed to take steps. An application was thereafter filed under Order 9 Rule 9 of the CPC for setting aside the dismissal. The ground shown for default on 14.10.1993 was that respondent plaintiff was suffering from old age ailments and O.P. No. 2 being her daughter was attending to her. They contended that the Puja vacation ensued from the next day and they could come to learn about the dismissal only on 15.11.1993. According to them, the application was delayed by one day for which a prayer for condonation of delay was also made.

3. In her written objection, the petitioner inter alia took the stand that the ground of illness taken in the application was incorrect and that the Opp. Parties/plaintiffs were negligent in taking steps and therefore their prayer for restoration of the suit ought not to be entertained. The Opposite Parties/plaintiffs examined 3 witnesses in support of their case. The petitioner defendant also examined 2 witnesses including herself. The learned court below on a consideration of the pleadings of the parties, as well as the evidence on record held that the contention of the plaintiff/Opposite Parties that the default on 14.10.1993 was not intentional and that the plaintiff/Opp. Party No. 1 was ill was acceptable. It, therefore, after condoning the delay, by the impugned order, restored the suit to file.

4. A bare reading of the impugned order indicates that the learned trial court, before coming to the conclusion that the stand of the Opposite Parties/plaintiffs that the default was not intentional and that the ground of illness of the Opposite Party No. 1, plaintiff No. 1 was acceptable had made an exhaustive analysis of the pleadings of the parties, as well as the evidence adduced by them. Sitting in Revision, I am thus not inclined to re-appreciate the evidence as already considered by the court below, more particularly when no perversity as such is noticeable in the approach.

The learned counsel for the petitioner has contended that the learned trial court while holding that the plea of illness of the Opp. Party No. 1, plaintiff No. 1 was believable had placed reliance on a medical certificate Ext. 1 though the concerned Doctor was not examined. According to him, therefore, the document was not admissible in evidence in absence of the evidence of the doctor and therefore it ought not to have been relied upon for the purpose of recalling the dismissal order. He relied on two authorities in this regard. In both the decisions it has been held that in the absence of the author of the medical certificate, it should not ordinarily be relied upon. This, however, in my opinion, does not further the case of the petitioner, in the facts and circumstances of the present case, as the stand of the Opp. Parties/plaintiffs that on 14.10.1993 the Opposite Party No. 1, plaintiff No. 1 was ill can be said to be substantiated on the basis of the oral evidence alone.

6. On a consideration of the materials on record I do not consider that the impugned order suffers from any legal infirmity calling for interference by this court in the exercise of its jurisdiction under Section 115 of the CPC. The petition is therefore without any merit.

7. At this stage, the learned counsel for the petitioner has submitted that the Opp. Parties should be saddled with costs for the harassment meted out to the petitioner/defendant. In view of the findings recorded by the learned court below and upheld by this court with regard to the circumstances, under w