NAZIMA SHAH @ IBEM Vs. MD. HASSIMUDDIN

JUDGEMENT

(1.) THIS Civil Revision arises out of order dated 18.5.2010 passed by the learned Civil Judge, Junior Division, Imphal East in Judl. Misc.Case No.66 of 2008 arising out O.S. No.1 of 2007.

(2.) THE present petitioner was defendant No.2 in the Suit. The Suit had been filed for the declaration that the respondent no.2 is the absolute owner of the suit property described in the Scheduled of the plaint. The Suit was decreed ex parte on 7.5.2008. An application was filed by the present petitioner and proforma respondent no.3 under Order IX Rule 13 of the Code of Civil Procedure (for short 'CPC') for setting aside the ex parte decree dated 7.5.2008. Since there was delay in filing the above application, a separate petition was also filed under section 5 of the Limitation Act,1963 for condoning the delay in filing the application under Order IX Rule 13 CPC. So far as the petitioner is concerned, it is stated at the Bar that there was delay of 62 days in filing the application for setting aside the ex parte decree. It is submitted by Mr.Ng. Premkumar Singh, learned counsel appearing for the petitioner that the petitioner was suffering from certain ailment for which neither she could appear in the Suit nor could file the application for setting aside the ex parte decree in time and supporting medical documents had been produced before the Court. The learned Civil Judge, Jr.Division, Imphal East dismissed the application for condonation of delay and consequently the application for setting aside of the ex parte decree on the ground that the petitioner had not explained the delay to the satisfaction of the Court.

(3.) THE learned counsel appearing for both parties made submissions on the question of delay. The learned counsel appearing for the petitioner relied upon Annexure -A/1 and A/2 to substantiate his submissions that the delay in filing the application for setting aside the ex parte decree had been explained by means of the said two medical certificates. The learned counsel for the respondents, Mr.P. Tomcha, submitted that Annexure -A/1 relates to the period from 22.01.2007 to 04.02.2007 and therefore, the said document is of no help to the petitioner, the summon in the Suit having been served on her on 7.2.2008. So far as Annexure -A/2 is concerned, it was contended by the learned counsel for the contesting respondents that the said document does not indicate the period during which the petitioner suffered from any kind of ailment.