GIRJA DEVI Vs. INDRANATH SAXENA

JUDGEMENT

(1.) THIS is an appeal against the order and decree dated 4 -12 -1979, passed by the Fourth Additional District Judge, Gwalior, in Civil Misc. Case No. 7 of 1919, which was preferred against the ex -parte Judgment and decree dated 12 -2 -1979, passed by the Fourth Additional District Judge, Gwalior in Case No. 13 -A of 1977 Civil Original.

(2.) THE facts of the case are that the respondent filed a civil suit bearing No 13 -A of 1977 in the Court of the Fourth Additional District Judge, Gwalior for partition of Joint Hindu Femily property situaled at Mainawali Gali, Lashkar, against eight sharers, wherein the plaintiff alleges to have 1/4th share, During the pendency of the suit, the defendant, Shivkailash, husband of appellant No. 1 and father of appellant No. 2 and respondent Nos. 9 to 14, died and they were brought on record as his legal representatives. Except the heirs of late Shivkailash, none of the other respondent -defendants has filed any written statement in the original civil suit That is (sic) legal representatives of Shivkailash are the contesting defendants.

(3.) THE main submission in the application was that she was looking after the case for herself as appellant No. I and for her son appellant No. 2 and her daughter Smt. Ranjana Saxena, Appellant Smt. Girjadevi Saxena, who is a lecturar in Private Cegree College, Guna, was down with fever (jaundice) from 2 -2 -1979 to 3 -3 -1979 and she was advised rest by the Doctor, Further, she was advised not to undertake troublesome journeys. Due to this ill -health and mental agony she was suffering because of the death of her husband on 10 -3 -1978, she could not give instructions to her advocate in time and due to this reason alone, the appellant could no present herself in the Court on 2 -2 1979 and 12 -2 -1579 and an ex -parte decree and judgment were passed against the appellants. In support of her application, Girjadevi submitted her affidavit, a medical certificate and also gave her evidence, while on behalf of respondent No 2. no evidence of rebuttal was led. The learned Fourth Additional District Judge, Gwalior did not agree with the above contentions of appellant No. 1 and rejected her application submitted by her under Order 9 rule 13, CPC, Aggrieved by the said order of dismissal, the present appeal is filed.