The

appellant

is

the

plaintiff

in

O.S.

No.3928/2009 on the file of the XII Additional City Civil

and Sessions Judge, Bengaluru [for short, 8the civil

Court9]. The appellant has filed this suit for ejectment of

the respondent and for recovery of alleged arrears of

rent. This suit is dismissed for default on 21.06.2019

i.e., almost ten years to the date of the institution of the

suit. The appellant has commenced proceedings under

Order IX Rule 9 of the Code of Civil Procedure, 1908 in

Misc. No.576/2019 for recall of this order dated

21.06.2019 and for restoration of the suit for decision

on merits. The Civil Court has rejected the petition by

the impugned order dated 28.02.2022.

2.

The appellant in support of the petition for

restoration

of

the

suit

has

contended

that

on

21.06.2019 she was suffering from viral fever and

running high temperature and as such she was unable

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to appear before the Court. The appellant9s case in this

regard is not controverted inasmuch as the respondent

has remained ex parte. However, the civil Court has

rejected the appellant9s petition essentially on twin

grounds: firstly, because the appellant had remained

absent on the hearing dates prior to 21.06.2019 and

secondly, the appellant has relied upon a medical

certificate which appears to have been obtained only for

the purposes of the petition.

3.

Sri. A. Sampath, learned counsel for the

appellant submits that the deficiencies in the conduct of

the proceedings on any date prior to 21.06.2019 [the

date of dismissal of the suit for default] would be

extraneous insofar as the cause shown for absence on

the date of the dismissal. Therefore, the appellate Court

has erred in relying upon the fact that the appellant

could not tender herself for cross examination after

completion of her evidence in chief prior to 21.06.2019.

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On 21.06.2019, the appellant was absent for the

reasons stated by her, but her counsel was present and

he sought for time. The civil Court has also erred in

opining that the medical certificate is a contrived

document. However, the civil Court failed to appreciate

that the appellant was at home because of viral fever

and high temperature and she could not make over the

medical certificate to her Counsel on 21.06.2019. The

reasons offered by the appellant to explain her absence

on 21.06.2019 must be the relevant factor to ascertain

sufficient cause.

4.

This Court is persuaded to accept the

learned counsel9s submission that the explanation

offered for the absence on 21.06.2019 must be

examined and not the previous conduct in view of the

settled law on this point. Insofar as the efficacy of the

medical certificate, the same must necessarily be tested

on the scale of preponderance of probabilities depending

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upon the facts of the case. The medical certificate is

admittedly dated 20.06.2019 and should have been

produced on 21.06.2019 ideally, and merely because it

is not produced on 21.06.2019 [and is produced at a

later date in the miscellaneous proceedings], it would

not be reasonable to infer that the medical certificate is

contrived.

5.

The suit is dismissed on 21.06.2019, and

the petition for restoration, with the Medical Certificate,

is filed immediately thereafter without any delay. The

suit is for ejectment of the respondent and for arrears of

rent. The appellant9s case is that she was suffering

from viral fever and running high temperature. These

circumstances persuade this Court to opine that the

civil Court has failed to consider material on record as

required in law viz., that the Courts must lean in favour

of a decision on merits when malafides cannot be

attributed to a party. For the foregoing, the following:

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ORDER

[a]

The appeal is allowed;

[b]

The impugned order dated 28.02.2022

in Misc. No.576/2019 on the file of the XII

Additional City Civil and Sessions Judge,

Bengaluru City, is quashed;

[c]

The suit in O.S. No.3928/2009 is

restored to the board of the civil Court for a

decision o