BAIKUNTHA NATH GUPTA Vs. JANKI DEVI

JUDGEMENT

(1.) HEARD the learned Counsel for the parties and perused the records.

(2.) DEFENDANT -petitioner has filed the present writ petition against the judgment and order dated 20 -9 -1999 passed by the District Judge, Varanasi dismissing Misc. Civil Appeal No. 154 of 1999 arising out of the judgment dated 2 -8 -1999 passed by Civil Judge, Varanasi in Civil Misc. Case No. 122 of 1999 reflecting the restoration application of the petitioner under Order IX, Rule 13 CPC, filed in Suit No. 203 of 1972, Chhangur Ram v. Kedar Nath, for setting aside the ex -parte decree dated 24 -3 -1999.

(3.) LEARNED Counsel for the petitioner has further submitted that no application has been filed or moved by the plaintiff -respondent for examination of the concerned doctor and as such ex parte decree was wrongly passed. He also states that the lower appellate Court has wrongly placed reliance on the case of Smt. Sudha Devi v. M.P. Narayanan and others, AIR 1988 Supreme Court 1381. In that case the final evidence was given through affidavit for passing of decree; whereas the restoration application was decided on the basis of affidavit, as per amended Rule XIX, of Order 19 CPC. It is submitted that the previous conduct of a party should not be sole criteria in deciding restoration application and has placed reliance in Rajendra Prakash and others v. Guari Shankar and others, 1990 R.D. 505 (D.B.). It is also stated that under similar facts and circumstances, the Hon'ble Supreme Court in G.P. Srivastava v. R.K. Raizada and others, (2000) 3 Supreme Court Cases 54, has held that for setting aside ex parte degree within statutory period, the Courts have wide discretion and thus expression must be construed as on classic expression. Paragraphs 6 and 7 of the judgment as under : (6) The trial Court did not accept the pleas raised by the appellant and found that the absence of the appellant or his Counsel in the Court on 10 -3 -1983 was not for a just of sufficient cause. The filing of the medical certificate was not disputed but the same was not relied on as it was found to have been obtained from a private doctor and not from a Government doctor. The High Court also did not accept the contentions of the appellant and noticing his previous conduct rejected the revision petition refusing to set aside the ex parte decree passed against him.