CHHABILA Vs. SAVITRI

JUDGEMENT

(1.) This revision petition has been preferred by the Plaintiffs under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') questioning the legality and propriety of the order dated 31.07.2019 passed by the 6th Additional District Judge, Raigarh (C.G.) whereby, the learned appellate Court while reversing the order dated 31.08.2018 passed by the 1st Civil Judge Class I, Raigarh in MJC No.6/2011 has allowed the application filed by the Defendants under Order 9 Rule 13 of CPC by setting aside the ex parte judgment and decree dated 15.05.2009 passed by the 2nd Civil Judge, Class I, Raigarh in Civil Suit No.34-A/2008. The parties to this Revision Petition shall be referred hereinafter as per their description in the Court below.

(2.) Learned counsel appearing for the Applicants submits that the order impugned as passed by the Court below while reversing the finding of the trial Court is apparently contrary to law. It is contended by him that in absence of medical certificates showing the illness of Applicant No.1 (Shyamanuj), the Court below ought not to have accepted their application for setting aside the said ex parte judgment and decree.

(3.) From perusal of the record, it appears that an application enumerated under Order 9 Rule 13 of CPC for setting aside the said ex parte judgment and decree delivered on 15.05.2009, was made on 19.08.2009 wherein, it has been alleged that since the Applicant No.1 (Shyamanuj) was ill seriously and his brother Vipin was engaged in taking care of him, therefore, they could not appear on the date of hearing i.e., on 19.02.2009. True, it is that the medical certificates showing the illness of Applicant No.1 (Shyamanuj) were not placed on record, but, merely on non-furnishing of it would not be sufficient to hold that he was not ill, particularly when he was a man of 70 years old and expired during the proceedings initiated under Order 9 Rule 13 of CPC for setting aside the said ex parte judgment and decree passed in a suit for declaration of title, partition and for separate possession.