MUBARAK Vs. RAM SINGH

JUDGEMENT

(1.) THIS is an appeal against order dismissing application for setting aside of ex parte decree. Plaintiff respondent filed Original Suit No. 947 of 1985 in the Court of Civil Court Judge, Ghaziabad for specific performance of a contract of sale. Suit was transferred to the court of IInd Additional Civil Judge, Ghaziabad. Defendant appellant filed written statement. On April 8, 1987 issues were framed and suit was fixed for final hearing on April 23, 1987. On this date suit was adjourned due to death of mother of the defendant's counsel. Again on July 5, 1987 suit was adjourned for personal reason of defendant's counsel. It was only on August 25, 1987 that suit was adjourned for defendant's personal cause. On September 15, 1987 defendant appellant did not appear in the court and suit was ordered to proceed ex parte. Ultimately on October 30, 1987 ex parte decree was passed against defendant appellant on December 18, 1987 defendant appellant applied for setting aside of the aforesaid ex parte decree and for condonation of delay under Section 5 of the Limitation Act. His ground was common in both the application. He asserted that he fell ill on September 12, 1987 are remained ill till December 17, 1987. Hence he could not attend hearing on August 15, 1987 and subsequent dates. In support of his case he filed his own affidavit and medical certificate of the Nanak Chand Gupta. This application was opposed by the plaintiff respondent who denied alleged illness of the defendant appellant and was asserted that on September 15, 1987 defendant appellant was present in the court but did not deliberately attend the hearing. Plaintiff respondent filed counter -affidavit. He too obtained medical certificate of Nanak Chand Gupta dated January 20, 1988 in which it was said that plaintiff respondent was ill from October 15, 1987. Then plaintiff respondent on the same day went to District Hospital and obtained certificate that he was not suffering from dysentery and that he was in fit state of health. Defendant appellant filed rejoinder affidavit.

(2.) LEARNED Civil Judge discarded the medical certificate filed on behalf of the defendant appellant. He relied upon the case of Ramji Dass v. Mohan, 1978 A.R.C. 496 and further observed that as far as possible suit should be heard on merits, but he did not find the affidavit of defendant appellant reliable. He relied upon the case of firm Dori Lal Chhotey Lal v. Jagannath Rameshwar Prasad : 1967 A.W.R. 233 and observed that when medical certificate is not found reliable defendant should have entered in the witness box for cross -examination. He did not find sufficient cause for absence of the defendant appellant and for condonation of delay. Hence he dismissed the defendant's application for setting aside of ex parte decree.

(3.) THE questions which required determination in this appeal is whether defendant appellant was ill as alleged by him and was prevented from moving application for setting aside of ex parte decree by his illness. I have perused copies of certificates of Nanak Chand Gupta filed with the affidavit of plaintiff respondent. His qualification is L.A.M.S. (Calcutta). He did not give his registration number. It is evident that the material on record did not show that he was a qualified registered medical practitioner. His certificate granted to appellant was that Sri Mubarak son of Sri Shakar, resident of Kal Chinna, District Ghaziabad had been suffering from dysentery from September 12, 1987 to December 17, 1987. The certificate did not show that the defendant appellant received treatment from said Nanak Chand Gupta nor it showed that he had examined the defendant appellant before December 17, 1987. It is thus obvious that the medical certificate obtained by defendant appellant from Nanak Chand Gupta was a mere waste paper and was obtained in over zeal. Then no comments on the medical certificate submitted on behalf of the plaintiff respondent need be made.