The legal principle established is that illness can constitute a sufficient cause for setting aside an ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code.

A.M. Sapre, J.

1. This appeal is preferred by one of the defendants of Civil Suit No. 21-A/91 under Order 43 Rule (1) (d) of C.P. Code against an Order dated 12-3-1997, passed by XIV Additional District Judge, Indore, in CMJC No. 4/95 arising out of CS No. 21-A/91. By impugned order, the application made by the appellant under Order 9 Rule 13 of C.P. Code seeking to set aside the ex-parte decree has been rejected. Facts in brief for the disposal of this appeal need mention infra.

2. Respondent No. 1 (plaintiff) filed a Civil Suit No. 21-A/91 against the appellant (defendant) and the respondent Nos. 2 and 3 claiming specific performance of contract in respect of agricultural land on the basis of contract entered into between appellant and one late Manohar Chunekar - father of appellant.

3. The suit was being contested by the appellant. A written statement was filed. Issues were framed.

4. On 7-2-1995, the case was fixed for recording evidence of both the parties. On this date, counsel appearing for appellant and also for another defendant reported no instructions. The learned trial Judge, therefore, proceeded ex-parte against the appellant (defendant) on 7-2-1995 and fixed the case for ex-parte evidence on 8-2-1995. The learned trial Judge then recorded plaintiffs ex-parte evidence on 8-2-1995 and closed the case. On 14-2-1995 the suit filed by the plaintiffs was decreed ex-parte, resulting in grant of decree for specific performance, in favour of plaintiff (respondent No. 1) and against the appellant (defendant) and other defendants - who according to plaintiff were subsequent purchaser of suit land.

5. This gave rise to filing of application by the appellant under Order 9 Rule 13 of C.P. Code seeking setting aside of the ex-parte decree. In the application, the appellant alleged that he was ill and in fact hospitalised for treatment from 5-2-1995 to 10-3-1995. According to appellant, it is this ailment that prevented him from contacting his lawyer as also from attending the Court. He alleged that he was not deliberate in his absence which was caused due to reasons beyond his reach. No sooner on 11-3-1995 he became fit to resume his normal duties as advised by his treating doctor, he contacted his lawyer who informed him about passing of ex-parte decree. Accordingly, the application was made.

6. The plaintiff (respondent) denied aforesaid allegations. Parties then led evidence. The appellant examined himself and also his doctor. He filed medical treatment papers to support his ailment during those dates.

7. By impugned Order the trial Court refused to set aside the decree and rejected the application holding that the cause shown in the application does not constitute sufficient cause so as to entitle the Court to set aside the decree. It is against this order, the appellant (defendant) has filed this appeal.

8. Heard Shri P.K. Saxena, Sr. Counsel with Shri Saraf for appellant (defendant) and Shri S.C. Bagadia, Sr. Counsel with Shri A.P. Polekar for respondents (plaintiffs).

9. In substance, the submission of Shri Saxena, learned counsel for appellant was that the cause alleged in the application did constitute a sufficient cause for setting aside the ex-parte decree suffered by the appellant. It was his submission that approach of learned trial Judge was very harsh and technical in deciding Order 9 Rule 13 application. He urged that it should have been seen that apart from the facts that cause alleged was sufficient cause but the conduct of defendant was throughout bonafide. He also submitted that the suit involved a valuable land which the appellant had to forgo without trial. He urged that cost would have been a better substitute in the facts of the case. He relied on the decision rendered in Malkiat Singh v. Joginder Singh.

10. In reply, the submission of Shri Bagadia, learned counsel for the respondents (plaintiffs) was for upholding of the impugned order. He urged that the evidence led by the defendant to support the so called