DILIP Vs. MEWAR ANCHALIK GRAMIN BANK, UDAIPUR

JUDGEMENT

(1.) THIS appeal under Order XLIII, Rule 1 CPC has been filed by the appellant against the order dt. 18.12.2008 passed by the Additional District Judge No. 3, Udaipur ('the trial Court') in Misc. Case No. 43/2008, whereby, the application filed by the appellant under Order IX, Rule 13 CPC has been dismissed. Brief facts of the case are that the respondent -Mewar Anchalik Gramin Bank ('the Bank') filed a suit for recovery of a sum of Rs. 53,092/ - under Order XXXVII before the trial Court. In the suit, on issuance of summons under Rule 2 of Order XXXVII, the appellant appeared and thereafter under Rule 3 summons for judgment was served on 19.04.2008. However, within ten days from the service of such summons as required by Rule 3(5), the appellant neither appeared nor applied for leave to defend and, therefore, the suit was kept for judgment on 19.05.2008 and the same was decreed on 19.05.2008.

(2.) ON 30.06.2003 the appellant filed application under Order IX, Rule 13 CPC, inter alia, with the averments that he was not well between 01.05.2008 to 20.05.2008 and, therefore, could not attend the hearing and thereafter he applied for certified copies of the judgment and decree on 21.05.2008, which was received by him on 29.05.2008 and on account of summer vacations in the Civil Courts, he has filed the application on 30.06.2008.

(3.) THE trial Court after hearing the parties came to the conclusion that the appellant has failed to produce any medical or other evidence relating to his illness, despite the fact that the averments were disputed by the respondent -Bank. Further, once the summons for judgment was served on him on 19.04.2008, he was required to apply for leave to defend within ten days, during which period, he was not unwell and, therefore, he has failed to disclose any reason for his non -appearance and, consequently, rejected the application.