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Atul Singh v. J.S.Cc. & Others - WRIT - C No. 19154 of 1986  RD-AH 21357 (19 December 2006)
Judgment Reserved on 29.11.2006
Judgment Delivered on 19.12.2006
Civil Misc. Writ Petition No. 19154 of 1986
Atal Singh Versus JSCC Meerut and others
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
Respondent No.3 Sant Ram institute O.S No. 417 of 1975 against petitioner for recovery of Rs. 2000/- as principle amount alleged to have been given as loan by plaintiff to the defendant along with interest. The petitioner defendant after filing the written statement did not appear in the suit hence it was decreed ex-parte on 1.12.1977 by Munsif Hawali Meerut. Thereafter petitioner filed restoration application on 1.12.1977 supported by affidavit stating therein that he was ill for about two months and since 24.10.1977 his illness had taken turn for worse and he was unable to move and that on 1.11.1977 the date on which suit was decreed ex-parte he was not able to come to court. Medical certificate dated 7.11.1977 was also filed along with the restoration application in which it was stated that petitioner was aged about 70 years and was under the treatment of doctor giving the certificate since 24.10.1977. Doctor advised him rest till 30.11.1977. Trial court through order dated 12.3.1984, rejected the restoration application. Against the said order petitioner filed Misc. Civil Appeal No. 123 (or 125) of 1984. Appeal was transferred for disposal to the court of JSCC Meerut. JSCC Meerut through judgment and order dated 4.7.1986, dismissed the appeal hence this writ petition.
The court below has given very strange reason for dismissing the restoration application. They have held that if petitioner was ill since 24.10.1977 then he should have informed his advocate on 1.11.1977 about his illness and instructed him to seek adjournment.
Illness on the date fixed in the suit is sufficient ground to set-aside the ex-parte order, which is passed on the said date. There is no such requirement that even if a party is ill on a particular date he shall make efforts to inform the advocate. Every one can not have another person at his disposal to inform his advocate about his illness. Medical certificate has also wrongly been doubted on the ground that on 7.11.1977 the doctor stated that patient was under his treatment since 24.10.77 and advised him rest till 30.11.77. Such type of certificate can not be said to be unusual. Even otherwise filing medical certificate in such matters is not absolutely essential. Restoration application had been filed within time. In restoration matters, court should not be very strict vide Collector Vs. Katiji AIR 1987 SC 1353 and M.K.Prasad Vs. P.Arumugam AIR 2001 SC 2497.
Learned counsel for the respondent has argued that the ex-parte decree has been executed and in execution plaintiff decree holder respondent No.3 has purchased the property of petitioner defendant. This fact has also been stated in the counter affidavit even though all the dates have not been clearly mentioned. No rejoinder affidavit has been filed. Learned counsel for the petitioner is also not aware about the said fact. However the effect of execution of decree and purchasing of property judgment debtor by decree holder himself need not be seen at this stage. These facts even if correct are no hindrance in setting aside the order rejecting the restoration application. The effect of these events may be seen at the appropriate juncture, if such plea is raised.
In the impugned orders, it is also mentioned that earlier also defendant had sought several adjournments. Firstly it appears from copy of the order sheet which is annexure 1 to the writ petition that only 1 or 2 adjournments were sought by the defendant and secondly allowing the earlier adjournment applications is no ground to reject the restoration application.
Accordingly writ petition is allowed. Both the impugned orders are set-aside. Restoration application filed by the petitioner before the trial court is allowed on payment of Rs.1000/- cost and ex-parte judgment and decree dated 1.11.1977 is set-aside.
Let both the parties appear before the trial court on 5.2.2007.
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