HEMANT KUMAR Vs. OM DUTT SHARMA

JUDGEMENT

(1.) THESE two applications have been filed by the defendants under Order 9 Rule 13 CPC and under Section 5 of the Limitation Act, 1963.

(2.) BRIEFLY stated the facts of the case are that the plaintiff has instituted the present suit for possession, permanent injunction and recovery of mesne profits/damages against the defendants. The defendants were served and had put in appearance through counsel on 26.04.2011. They were granted 30 days time to file the written statement and reply to the interim application. The matter was adjourned to 10.08.2011. After four months, when the matter was taken up on 10.08.2011, there was no appearance on behalf of the defendants. Consequently, they were proceeded ex parte and the case was fixed for ex parte evidence. The plaintiff filed the ex parte evidence by way of affidavit, got the documents exhibited and consequently an ex parte decree was passed against the defendants on 23.02.2012. The defendants have filed the application (IA No.16552/2012) for setting aside the ex parte decree on 06.09.2012 along with an application under Section 5 of the Limitation Act, 1963 being IA No.1430/2013 seeking condonation of delay of 192 days in filing the application under Order 9 Rule 13 CPC.

(3.) THE law regarding setting aside an ex parte decree is very clear under Order 9 Rule 13 CPC. The same is that the defendant must show that either he has not been served, or, if he has been served, then he has been prevented by 'sufficient cause'. A cause is construed to be 'sufficient' only if it is a cause which is beyond the human control. A cause like medical illness or medical reasons will be taken to be a sufficient cause only if it is of such a nature that it confines a person to bed or a hospital which restricts his movement or activity of engaging a counsel for the purpose of his defence in the suit. In the instant case, the medical record which has been filed by the defendants only shows that the defendant No.1 has undergone some medical tests which undoubtedly show that the defendant No.1 is suffering from medical ailments because of which he was taking medicines and advised bed rest, but none of the prescriptions is of such a nature which would show that the defendant No.1 was confined to bed for all times to come which would have disabled him from contesting the matter; more so, when a counsel was engaged.