PITAMBER Vs. RAHIS AHMED

JUDGEMENT

(1.) This is a second appeal preferred against the impugned judgment dated 1.4.2010 wherein the appeal filed by the appellant seeking setting aside of the order dated 19.12.2009 passed by the Civil Judge on the application under Order 9 Rule of the Code of Civil Procedure (hereinafter referred to as `the Code') read with Section 5 of the Limitation Act had been dismissed.

(2.) Briefly stated, the facts of the case are as follows: The plaintiff had filed a suit for possession and mesne profits. The defendants/appellants had been served and they had put in their appearance on 14.7.2008; written statement had been filed on 18.7.2008; issues were framed on 22.10.2008; matter was adjourned for the evidence of the plaintiff to 11.12.2008 on which date two witnesses on behalf of the plaintiff had filed their evidence by way of affidavit. None had appeared for the appellant on the said date. No adverse order was passed against the defendant; matter was adjourned for cross-examination of the witnesses of the plaintiff for 23.4.2009 on which date since the defendants had again failed to appear, the defendants had been proceeded ex-parte at 2.30 p.m. Evidence was closed; the matter was fixed for final arguments for 29.5.2009; judgment was delivered on 10.8.2009. Suit of the plaintiff had been partly decreed for possession and mesne profits.

(3.) On 14.12.2009, an application under Order 9 Rule 13 of the Code had been filed for setting aside the judgment and decree. Along with the said application an application under Section 5 of the Limitation Act had also been filed. The contention of the learned counsel for the defendant/appellant was that he was suffering from tuberculosis and as such he was not in a position to appear in the court. Further, the father of the defendant had expired and he was under depression and there was no one to look after his minor children and his wife. Trial court had dismissed both the applications for condonation of delay as also the application filed under Order 9 Rule 13 of the Code on 19.12.2009.