THAKUR KAN SINGH Vs. THAKUR DEVI SINGH

JUDGEMENT

(1.) HEARD learned counsel for the parties and perused the revision petition and the order of the learned trial court dated 27th September, 2000 under which the application filed by the petitioner under Order 9 Rule 7 CPC was rejected.

(2.) THE plaintiff respondent No. 1 filed a suit for partition along with an application for grant of temporary injunction against the defendant petitioner and defendant proforma respondents. 17th October, 1996 was the date fixed for filing written statement in the suit. On that day, neither the defendant petitioner nor his counsel appeared, therefore, the court order to proceed ex parte in the suit against him. The proceeding continued for grant of temporary injunction and no progress whatsoever has been made in the suit.

(3.) I have gone carefully through the order of the learned trial court. The suit is only at this stage of framing of issues. The suit is for partition. There crept is typographical error in the application. It is unfortunate, learned trial court instead of considering the substance of the matter has gone on technicalities. The learned trial court acted wholly perversely in not believing the medical certificate produced by the defendant petitioner. The learned trial court has not said or recorded that this certificate is not reliable. If we go by any date i.e. '7th' or 17th October, 1996, we find from the medical certificate that on both these dates the defendant petitioner was not in a position to attend the court. In the application, though the date of absence 7th October, 1996 is mentioned but an application was filed for grant of permission to make correction therein and that application has not been decided. Thus, the learned trial court has committed a serious illegality in holding that the application is not bona fide one. In case, the order of the learned trial court is allowed to stand will certainly occasion a failure of justice for the defendant-petitioner.