SHYAM LAL Vs. P D SINGH

JUDGEMENT

(1.) A suit for arrears of rent and eviction was filed against the petitioner by the landlord on the ground of default. The rate of rent was said to be Rs 50/- per month and the arrears claimed was for a period of 1-6-77 to 5-12-79. The suit was filed on 14-1-80. A written statement was filed by the petitioner 10-7-85 was the date fixed for recording of evidence in the case. The petitioner could not attend the court on the date fixed oh the ground of ailment of dysentry. Since on the date fixed, the petitioner was absent, the court was directed to proceed with the case exparte. After recording the statement of the plaintiff exparte, the suit was decreed by an order dated 22-7-85, decreeing the suit for arrears of rent for the period claimed for a sum of Rs. 1953.30p. and the damages was also awarded at the rate of Rs. 10/- per day as claimed in the plaint. An application under Order 9 Rule 13 was filed by the petitioner-tenant for setting aside the expatte decree along with a medical certificate that the petitioner was ill on 8-7-85 till 13-7-85. The learned trial court rejected the application and refused to set aside the exparte decree and restore the suit to its original number. Against the said order, a revision was filed which two was rejected by an order dated 13-2-89.

(2.) BEING aggrieved by the judgments of the trial court and the revisional court, the present writ petition was filed. The petition was kept pending. An interim order was passed by this court without any direction for payment of any amount by the tenant during the pendency of the writ petition. The matter was pending and on application of the tenant-opposite party, this Court was pleased to pass an interim order dated 17-11-92 by which it was directed that an amount of Rs. 5000/- be deposited within six weeks from the said date through bank draft to the learned counsel for the respondents Sri B. B. Paul. It was said that in case of default, the interim order dated 26-7-89 staying the execution of the decree would stand automatically vacated.

(3.) I would proceed to decide the writ petition on merits. The matter for consideration for this court is whether the Trial Judge was legally correct in refusing to set aside the exparte judgment and decree passed by him on 22-7-85. I have perused the judgment of the trial court, as well as the revisional Court. It is not disputed that the application for setting aside the exparte decree and restoration of the suit to its original number was filed by the petitioner within seven days from the date of the exparte decree. The first question that is to be considered is that whether day-to-days explanation has to be given for filing the application for recalling the order and restoration. The period of limitation for filing the restoration application is 30 days according to Limitation Act and the present application was well within time. One of the factor dealt with by the learned Trial Judge that day-to-day explanation was not given by the petitioner in his application. I am satisfied that the learned Trial Judge was wholly erroneous, in taking a view that day-to-day-delay was to be explained even when the application for setting aside the restoration was filed within the prescribed limitation, secondly, the other aspect for rejecting the application was that the petitioner's medical certificate showing that the petitioner was suffering from dysentry between the period 8-7-85 to 13-7-85 was believable or not. The learned Trial Judge observed that the petitioner has not established ?his fact that he was incapable of movement during this period. It has also been said that the Doctor's certificate is dated 13-7-85. It has been argued by the learned counsel for the respondents that there is no medical certificate to show that on 8-7-85 the petitioner was actually ill. It is common knowledge that on the first date of the ailment when a person goes for treatment, does not obtain a certificate that he has fallen ill and is under treatment. It is general practice that a certificate is taken when the ailments are practically cured. Anyway, the approach of the trial court and the revisional court, in those aspect . that the medical certificate do not indicate that the petitioner was confined to bed and was not in a position to come to the court appears to be peculiar and perverse view taken by the courts below.