MOHD. SALEEM Vs. STATE BANK OF INDORE

JUDGEMENT

(1.) This appeal is directed against the order dated 20.9.1999, dismissing the application of appellant/petitioner under Order 9, Rule 13, C.P.C..

(2.) The respondent/Bank filed a suit for recovery of loan amount against the present appellant. The appellant/defendant was duly served. However, since he remained absent and his Counsel pleaded no instructions on the date of hearing on 23.6.1995, he was proceeded against ex parte and a judgment and decree was passed against him. He filed an application under Order 9, Rule 13, C.P.C. on 16.10.95, stating that he was ill, and therefore, could not appear in the suit on the date of suit and for the same reason there was delay in filing application, for setting aside ex parte decree.

(3.) After recording evidence, the learned Trial Court found that there was no sufficient cause for non-appearance and accordingly dismissed the petition under Order 9, Rule 13, C.P.C.. The cause shown in the application was that the appellant/petitioner had fallen ill on 20.6.1995 due to physical and mental tension and got rid of his ailment on 2.10.1995. Therefore, the application under Order 9, Rule 13 of C.P.C. was filed by him on 16.10.1995. The particulars of ailments were not specified in the application. In support of the application, the petitioner Mohd. Salim (AW/1) examined himself and stated that he was suffering from blood pressure and diabetes and he recovered from the said diseases on 2.10.1995. He has produced the certificate Ex. P/1-A by Dr. B. Khan (AW/2). Dr. B. Khan (AW/2) in his statement in examination-in-chief did not specify as to what was the disease of the appellant/petitioner. He only stated therein that he had issued certificate Ex. P-1-A. In the absence of statement of Dr. Khan about the contents of the certificate, the same cannot be read in evidence, as it is not substantive piece of evidence.