LAL SAHEBA PODH Vs. JANAKI PODH AND

JUDGEMENT

(1.) Defendant No. 3 has filed this Civil Revision against the concurrent orders passed by the courts below refusing to set aside an ex parte decree passed against the defendants in a suit for title and confirmation of possession/ recovery of possession filed by present opposite party No. 1 and two others.

(2.) The suit was-posted for hearing on 24-7-19%. Even though the defendants had filed written statement, they were absent on the said date and their application for adjournment having been rejected, the suit was taken up for ex parte bearing on the same day and ultimately, the ex parte decree was passed on 3-8-1996. Subsequently, on 26-2-1997, the present petitioner and opposite party No. 2 filed art application under Order 9, Rule 13, Code of Civil Procedure, for setting aside the ex parte decree on the ground that due to their illness on the date of hearing, they could not attend the court. A separate petition under section 5 of the Limitation Act was filed wherein it was stated that due to prolonged illness of the two petitioners, the petition under Order 9, Rule 13 could not be filed in time. The aforesaid applications were resisted by the present plaintiff-opposite party No: 1. Before the trial court, the petitioners had examined themselves and the doctor who had treated petitioner No. 1 was also examined as a witness. The plaintiff had adduced her own rebuttal evidence. The trial court held that though the petitioner No. 1 was ill on the date of hearing and there was sufficient cause for his non-appearance, no material had been shown to indicate about the illness of petitioner No. 2 and as such there was no sufficient cause for: non-appearance of petitioner No. 2.

(3.) In appeal filed by the present petitioner and opposite party No. 2, the appellate court was inclined to accept the stand of petitioner No. 2 that he was prevented from attending the court on the date fixed as he was suffering from Asthma. However, the appellate court observed that no sufficient explanation had been furnished for condoning the delay in filing the petition under Order 9, Rule 13, Code of Civil Procedure, which had been filed about five months beyond the period of limitation. The appellate court observed as follows :