1986 Supreme(MP) 733

IN THE HIGH COURT OF MADHYA PRADESH
P. C. Pathak, J.
Gendalal - Appellant
Vs.
State of M.P. - Respondent
M. A. No. 114 of 1981 (J)
Decided On : 29-01-1986

Headnote:Civil Procedure Code, 1908 – O. 9, R. 9 – restoration of suit under – medical certificate filed – plaintiff examined himself and also filed affidavit – no counter affidavit or witness examined in rebuttal – suit should be restored.

        Short Note

       Civil suit No. 1 – B of 1977 was dismissed in default of the plaintiff's appearance on 2 – 2 – 1980. On 21 – 2 – 1980, the plaintiff made an application for restoration of the suit under rule 9 of – order IX of the Code of Civil Procedure, stating that he had developed blood pressure and also suffered from dysentery from 30 – 1 – 1980 to 5 – 2 – 1980. He, therefore, could not appear on 2 – 2 – 1980. The treating physician issued a medical certificate (Ex. P – ). The application is supported by an affidavit. On behalf of the defendant – State, a reply opposing the application was filed. There is, however, no affidavit in support of the said reply. The applicant examined himself to prove his illneS. On behalf of the State, no witness was examined in rebuttal. The learned trial Court rejected the application on the sole ground that the treating physician was not examined to corroborate the statement of the applicant. Aggrieved by the said order, the appeal has been filed by the plaintiff – appellant.

       2. Held: Gendalal sworn an affidavit and also entered the witness box to prove his illness during the crucial period. He also filed the medical certificate even by the treating physician. In cross – examination, his illness was not seriously challenged. There is neither any affidavit in support of the reply nor any defence witness was examined in rebuttal of his statement. In these circumstances, merely because the applicant did not examine the treating physician that does not in any manner detract the value of his statement given on oath before the Court. The medical certificate was also allowed to be exhibited without any objection. In these circumstances, I hold that the appellant has made out sufficient cause for his failure to appear in the Court on 2 – 2 – 1980. Appeal allowed.