GOURANGA DEBNATH Vs. BISWAJIT MALAKAR AND ORS.

JUDGEMENT

(1.) HEARD Mr. K.N. Bhattacharji, learned senior counsel, assisted by Mr. D. Sarma, learned counsel appearing for the respondents.

(2.) AT the outset, Mr. K.N. Bhattacharji, learned senior counsel appearing for the petitioner, at the outset, has submitted that though the petition made under Section 5 of the Limitation Act for condoning the delay for presenting an application under Order IX, Rule 13 of the C.P.C. for setting aside the ex parte decree dated 25.11.2009 passed by the Civil Judge, Junior Division, Belonia, South Tripura, in Title Suit No. 48/2009 has been rejected, but the said petition, accompanied with the petition for condonation of delay, under Order IX, Rule 13 of the C.P.C. has not been dismissed, at least there is no such order in the record.

(3.) THERE is no dispute that for filing the application for setting aside the ex parte decree dated 25.11.2009 delivered in Title Suit No. 48/2009, the petitioner caused a delay of seventy days. The causes assigned for such delay are that the petitioner was seriously ill from 24.11.2009 to 31.01.2010. Even, in support of that illness the petitioner produced a certificate from the competent medical practitioner, but the Civil Judge, Junior Division, Belonia, South Tripura, has observed that from the records of Title Suit No. 48/2009, it appeared that the summons were received by the petitioner on 28.09.2009 and, he was allowed 90 days for filing the written statement. But, the petitioner did not submit the written statement. As consequence thereof, on 25.11.2009 when the petitioner sought further extension of time for filing the written statement, that prayer was rejected. According to the Civil Judge, the petitioner went to the doctor on 24.11.2009 for the first time, whereas the ex parte order was passed on 25.11.2009, but the petitioner in his petition dated 25.11.2009 did not enclose any copy of the medical prescription. It is evident from the said prescription that after 24.11.2009 the petitioner went to the doctor on 24.12.2009 and 22.01.2010 and he was advised to take bed rest. Thereafter, the Civil Judge has observed as under: