GURU DUTT GUPTA Vs. GAURI SHANKER AND CO

JUDGEMENT

(1.) This petition under Section 25 of the Provincial Small Cause Courts Act, is filed against the order of the Additional Judge, Small Cause Court, Delhi, dated 13-ll-?9, dismissing the application of the petitioner under Order Rule 13, Civil Procedure Code. for setting aside an ex-parte decree passed against him. The respondent herein, filed suit No. 2687 of 1957 for recovery of Rs. 600.00 from the petitioner herein. The petitioner contested the suit. The evidence was recorded and on 29-5-59, the case was adjourned to 11-6-59 for the remainining evidence. On 11-6-59, the petitioner herein did not appear and the Court passed an ex-parte decree.

(2.) From the records what transpires is that after the case was adjourned on 29-5-59, the petitioner herein, went to Kota to attend to his business and there he fell ill, with the result, he was not able to return lo Delhi to attend to his case on 11-6-59. He obtained a medical certificate from the Medical Officer, Suraj Pur Dispensary, Kota, of the Rajasthan Medical Dtpartment, on 8-6-59 and sent the same by post to his council at Delhi on 9-6-59. However, it reached the counsel on 12-6-59. There after, on 13-6-59, the counsel for the petitioner herein filed the application underolder 6 Rule 13, or setting aside the ex-parte decree; stating the circumstances referred to above. The learned Additional Judge, Small Causes Court, Delhi, by a procees of curious reasoning by his order dated 13-11-59, dismissed, the petitioner has came up to this Court. It is better to extract the order of the learned Additional Judge in full. He held;-

(3.) The other ground given by the Learned Addition Judge is that no affidavit was filed by the petitioner, I have already indicated that the petition was filed by the counsel for the petitioner on 13.6.59 when the petitioner himself was not in Delhi. Hov could the learned Additional Judge expect the petitioner to file the affidavit on that day, passes one's comprehension. As a matter of fact, when the petitioner sent the medical certificate by post from Kota on 9.6.59, he would have done so only with the object of obtaining an adjournment of the case and would not have anticipated that it would reach his counsel late and the case would not have anticipated that it would reach his counsel late and the case would be decided ex-parte on 11.6.59. The absence of the affidavit does not, in any way, render the grounds mentioned in the petition or in the medical certificate untrue or even improbable. Lastly, the ground that has been relied upon by the learned additional Judge is that the certificate had not been proed by the Medical officer who gave it and no independent withess had been produced, The learned judge does not say that he found anything suspecious ex facie in the medical certificate or in the case of the petitioner. Hence it is a technicality with a venzeance that has been insisted upon by the learned Judge does not say that he found anything suspecious ex facie in the medical certificate or in the case of the petitioner. Hence it is a technicality with a vengeance that has been insisted upon by the learned Judge. Under these circumstances, I allow the rev ision petition and set aside the order of the learned Additional Judge and also set aside the ex parted decree passed by him I may also point out here that the case was in the list for several days before me and was taken up by me yesterday and remained part-heard and was so included in the list for to-day and no body has appeared for the respondent. I do not pass any order as to costs and direct the parties to appear before the additional Judge, Small Causes co on 7.4.67.