MURARI LAL Vs. SMT. SHANTI DEVI AND ANOTHER

JUDGEMENT

(1.) This is an appeal directed against the order dated 29th Aug., 1983 dismissing the defendant's application to set aside the ex parte decree passed on 29.11.82.

(2.) According to the facts stated in the court the suit was fixed for final hearing on 11.11.82 but on that date the defendant did not appear and the suit was directed to be listed on 29.11.82 for ex parte hearing on that date the suit was decreed ex parte. Subsequently, an application to set aside the ex parte decree was moved on 9.12.82 supported by an affidavit. A reply to the same was filed by the opposite party and in the affidavit in support thereof it was alleged that the defendant was not ill on the date fixed. The appellant thereafter filed a medical certificate of one Dr. Brijesh Goyal dated 20th Aug., 1983. This certificate has not been accepted by the court below on the ground that it was not filed along with the application and was filed only on 20.8.83. The court has also mentioned that in the medical certificate the applicant had been advised to take rests for two weeks and there is no mention that he was advised complete rest. The court has mentioned that the ailment of the applicant was of minor nature otherwise he would have been advised complete rest by the doctor. On these grounds the application has been dismissed.

(3.) On hearing the learned counsel for the parties cannot pursuade myself to agree with the view of the court below. The medical certificate was filed late only because the fact of illness had been denied by the plaintiff in his affidavit dated 21st of March, 1983. Thereafter, before the date of hearing medical certificate was placed on record. The medical certifies ate is dated 10.11.82. Obviously, medical certificate must have been in possession of the appellant and was not filed since the question of illness had not been challenged till then by the plaintiff. As soon as it was challenged the medical certificate was placed on record. Apart from this it has been held by a learned single Judge of this court in M.C. Vyas Vs. Yogendra Varshney, 1985 AWC 1046 that when a medical certificate has been filed and the question was whether the party was ill on a particular date or not it was necessary for the court to examine the medical certificate closely and to record the finding that the medical certificate was false if the court wanted not to rely upon the medical certificate.