HAJI AJAIB HUSSAIN Vs. AALISHAN BUILDERS

JUDGEMENT

(1.) CIVIL Suit No. 71-A/99 for eviction and recovery of arrears of rent was filed by the appellant/plaintiff against the defendants. It was fixed for evidence of plaintiff on 2-9-1999. Plaintiff (84), who was indisposed due to heart-attack, was advised complete bed rest by his physician Dr. Moiz Hussain. Plaintiff's son was also suffering from blood cancer and was admitted in the hospital during August 23 to August 28, 1999 for chemotherapy treatment and advised bed rest. Junior counsel appeared in the case and intimated the Court that witnesses had not come while senior counsel was ill and sought adjournment which was rejected and the judgment followed for non-appearance of the plaintiff.

(2.) QUESTION is whether a case for setting aside the judgment dated 2-9-1999 is made out on the ground that the plaintiff was ill, so was his son. Senior counsel appearing in the case on behalf of plaintiff suffered heart-attack on account of which he too was absent. Learned counsel for respondents submits that plaintiff was making persistent defaults in appearing in the Court for prosecution of his case, as is clear from order-sheet dated 2-9-1999. It is true that the plaintiff has been making defaults in appearing in the Court for some time in the past but that does not appear to be without justification. As said, he is an old man of 84 with failing health resulting in heart-attack at a later stage. Similarly, his son was also suffering from cancer for some time past. The calamity also fell on the lawyer appearing for him as he suffered heart-attack. Junior counsel got bewildered when the Court rejected the prayer for adjournment.

(3.) BUT for the difficulties to which the plaintiff was put by circumstances, he has been making persistent efforts to prosecute the case in various Courts. Circumstances placed before the Court by the junior counsel were enough to postpone the matter. Afterall, efforts of Courts should be to decide claims of parties on merits after giving them reasonable opportunity to put up and prove their respective cases, instead of rejecting them despite genuine and justified mistakes in prosecuting them. In (2000) 7 SCC 372 (State of M. P. and another Vs. Pradeep Kumar and another), the Apex Court said in Paragraph 12 that :-