SIBRATAN CHOWDHURY Vs. RATHINDRA NATH KUNDU

JUDGEMENT

(1.) This application is at the instance of the plaintiff and is directed against the order no.106 dated September 23, 2008 passed by the learned Civil Judge (Junior Division), First Court, Krishnagar in Misc. Case No.10 of 2006 thereby allowing the said misc. case under Order 9 Rule 13 of the Code of Civil Procedure.

(2.) The short fact of the case is that the plaintiff instituted a suit for specific performance of contract and other reliefs. The defendant was contesting the suit. In June, 2005 the mother-in2 law of the petitioner was ill and bedridden and for that reason the petitioner could not contract his lawyer. Subsequently, the petitioner also became ill and he could not attend court on February 14, 2006. Even he could not intimate his lawyer over telephone for which the suit was decreed ex parte against him. The petitioner was not negligent in taking appropriate steps in the suit. Even he filed an application before the Honble High court against rejection order dated June 6, 2005. He could not attend the court on February 14, 2006 due to illness of his wife and for that reason, the suit was decreed ex parte against him. Against such order, the defendant/opposite party filed an application under Order 9 Rule 13 of the C.P.C. which was allowed on contest by the impugned order. Being aggrieved, the plaintiff/petitioner has preferred this application. Mr. Banerjee, learned Advocate appearing on behalf of the petitioner, submits that though the petitioner has stated in his application that his mother-in-law was ill. In fact, during deposition he has stated that his mother was ill in June, 2005 and she was bedridden for which he could not contact his lawyer. He has also contended that on February 14, 2006, the opposite party did not attend court on the ground that his wife was ill and as such, he was not able to attend court. But the fact is that on February 14, 2006 the conducting lawyer of the defendant informed the Court that his client is not willing to proceed with the suit.

(3.) In fact, on that day the defendant attended his office. On the other hand, Mr. Bagchi, learned Advocate appearing on behalf of the opposite party, submits that in this case the question to be looked into is whether the defendant had explained sufficient cause for non-appearance. If the Court believes that there was sufficient cause for non-appearance, Court could well set aside the ex parte decree.