SARAT CHANDRA NANDA Vs. PUSPALATA NANDA

JUDGEMENT

(1.) HEARD learned counsel for both parties. Plaintiff is the writ petitioner. Having lost his case with a prayer to condone the delay of two and half years in filing a petition under Order 9 Rule 9, CPC for restoration of the suit for eviction which he filed and which he left for dismissal for default. True it is, the opposite party -defendant was also recalcitrant inasmuch as he never appeared and filed a written statement on his behalf. It is equally true that between 24.2.1998 and 20.8.1998 the defendant was given an opportunity of filing a written statement which he had not availed. The case happened to get transferred on 4.9.2004 fixing the date for appearance and ex parte hearing on 18.11.2004. Since the writ petitioner -plaintiff was absent both on 18.11.2004 and subsequently adjourned date on 29.1.2005 and the case was dismissed for default he preferred an application under Order 9 Rule 9, CPC with an application u/s. 5 of the Limitation Act on 21.8.2007 stating that between 15.2.2005 and 20.8.2007 he was ill. He had also preferred to examine the Physician who treated him.

(2.) A careful perusal of the evidence of the Physician disclosed three points (i) no finding was given regarding the systolic and diastolic reading of the blood pressure alleged; (ii) prescriptions were not produced and said as lost; and (iii) how and in what condition the patient was and there is lack of evidence about the inability and immobility of the plaintiff.

(3.) BY relying upon such observation of the Apex Court, the learned counsel for the petitioner submitted that even though the writ petitioner -plaintiff was bound to explain each days delay, in order to take a pragmatic approach which we have to see is as to whether he was at all ill and that illness prevented him from coming to Court. By taking a broad approach, we can believe the version of the Physician that the plaintiff was ill during the period prior to 21.8.2005. But at the same time how could all of a sudden he got relieved on 21.8.2005 and the question as to why the Physician should say that the advocate was behind the preparation of the medical certificate which he produced before the court. In this context, by accepting the case of the plaintiff that there was cause for absenteeism, we may also say in explaining the situation that the patient despite his inability might have preferred for sending words to his advocate. Anyway there is some inaction on the part of the plaintiff for which he is liable to pay cost.