AKM JAMALUDDIN Vs. MANTU LAL MAJUMDER

JUDGEMENT

(1.) The plaintiff-petitioners obtained an ex parte decree against the defendant. respondent against which the respondent filed Miscellaneous Case No. 11 of 1992 under Order IX rule 13 CPC which was allowed by the Senior Assistant Judge, 1st Court, Chittagong by judgment and order dated 29-10-92 on the ground that although the respondent could not prove that he was ill on the date of hearing and that he merely filed a medical certificate without examining the doctor who issued the certificate, yet his conduct although out, was diligent and therefore on payment of Taka 1,000.00 to the plaintiff-petitioners within 15 days the suit may be restored to its file.

(2.) On the plaintiff-petitioner revision, Civil Revision No. 117 of 1993, a Division Bench of the High Court Division found that the procedure adopted by the trial Court will encourage the filing of spurious medical certificates. The doctor who granted the certificate or a witness who knows the doctors signature should be examined. As such the trial Courts judgment was set aside and the case was sent back on remand to give an opportunity to the defendant to prove his illness.

(3.) The plaintiff-petitioners now seek leave to appeal from the aforesaid judgment and order of the High Court Division dated 11-8-94.