DEVANAND GUPTA Vs. ABDUL FARID AND OTHERS

JUDGEMENT

(1.) This is the defendant's appeal against the order of dismissal of his application under Order 9 Rule 13 CPC.

(2.) It appears that a suit for specific performance of agreement dated 9.3.1987 was filed against defendant-appellant in which 15th February, 1989 was fixed. On that date defendant absented himself and the suit was decreed ex parte. Subsequently on 17th February, 1989 he moved an application for setting aside the ex parte decree which was supported by an affidavit and also a medical certificate dated 17th February, 1989.

(3.) The application was rejected by the trial Court mainly on the ground that while, according to the applicant, he had come to the Court on 15th February, 1989 on recovering from illness and then came to known about the decreeing of suit ex parte. On the other hand in the medical certificate it is mentioned that the defendant was ill from 7th February, 1989 to 15th February 1989. The trial Court took the view that the stand taken by the defendant was incorrect that he was ill on 15th February, 1989. Shri A.N. Bhargava learned Counsel appearing for the appellant submitted that the Court below had taken too technical view of the medical certificate and has not recorded any finding that either the medical certificate was wrong or his affidavit was incorrect. The Court should have taken a lenient view of the matter.