RADHEY SHYAM Vs. SARWANAND UPADHYAY

JUDGEMENT

(1.) This is defendant's First Appeal From Order under Order 43, Rule 1 (d) of the Code of Civil Procedure (for short the Code) against order dated 24/03/1989 passed by Ist Additional Distt. Judge rejecting the application to rehear the appeal and to recall ex parte decree dated 4/01/1989.

(2.) Factual matrix of the case is that the appeal was fixed for hearing on 4/01/1989 and on that date Radhey Shyam appellant No. 1 fell seriously ill and could not attend the court but the appeal was decided ex parte against the appellants. Restoration application was filed by the appellants stating that appellant No. 1 was doing pairabi and he fell seriously ill and he has filed medical certificate as Annexure 2 to the affidavit accompanying the restoration application. Medical Certificate indicates that Radhey Shyam was suffering from typhoid fever. By the impugned order restoration application has been rejected.

(3.) Mr. B. N. Rai, learned counsel for the appellant urged that the application for restoration under Rule 21 of Order 41 of the Code was accompanied by the Medical Certificate and sufficient ground was made out for not appearing on the date fixed, consequently ex parte decree ought to have been set aside. Learned Judge erred in rejecting the same by making just sweeping observations that appellant No. 2 must have been deputed to attend the Court in case appellant No. 1 was ill. As the procedure has been provided under Rule 21 Order 41 of the Code to do complete justice between the parties court must have taken reasonable view.