NITYANANDA Vs. SIPRA

JUDGEMENT

(1.) Both these appeals were heard analogously and are disposed of by this common judgment since they involve common questions of fact and law. Miscellaneous Appeal No.173 of 1980 is directed against the order refusing to set aside the ex parte decree in Money Suit No.105 of 1977 and Miscellaneous Appeal No.303 of 1980 is directed against the order refusing to set aside the ex parte decree passed in Title Suit No. 71-149 of 1978-79.

(2.) Money Suit No. 105 of 1977 was filed for compensation and damages for the loss of character of the plaintiff; Sipra Das and also for loss of opportunity for her marriage due to illicit pregnancy through the defendant and the delivery of the illegitimate child Nandita and for defendant's refusal to marry her in breach of his promise to do so. Title Suit No.71-149 of 1978-79 was filed by Nandita, the illegitimate child, for her maintenance, present and future. Both the suits were posted to 22-6-1979 for hearing. On that day, the defendant remained absent in consequence of which he was set ex parte. The trial Court posted the suits to 30th of June, 1979 for judgment. On 30-6-1979, the judgment was delivered decreeing both the suits and formal decrees were drawn up on 6-7-1979. The defendant thereafter filed applications for setting aside the ex parte decrees on 10-7-1979. The learned Subordinate Judge having rejected those applications, the defendant has preferred the present appeals.

(3.) The defendant's plea in his applications filed under Order 9, Rule 13, Code of Civil Procedure, is that he suffered from dysentery and fever from 18-6-1979 to 25-6-79 and was bed ridden and on that score could not take part in the hearing of the suits on 22-6-1979. The plaintiffs filed objections asserting that the defendant wilfully defaulted in not appearing at the hearing only to harass the plaintiffs and even though he was present in the Court on the date of hearing, but did not take part in the proceedings.