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Nityananda Majhi Vs. Sipra Das and Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 173 and 303 of 1980
Judge
Reported inAIR1986Ori102
ActsEvidence Act, 1872 - Sections 3 and 45
AppellantNityananda Majhi
RespondentSipra Das and Etc.
Appellant AdvocateP.K. Dhal, Adv.
Respondent AdvocateM. Patra, Adv.
Excerpt:
.....under whose treatment the defendant was continuing, as well as his certificate (ext. 6. it is no doubt true that the out-patient register would have been the best piece of evidence in support of the fact that the defendant was being treated at the primary health centre for his illness. 1) clearly indicates that the defendant was ill from 18-6-1979 to 25-6-1979. the observation of the learned subordinate judge that absence of any indication in the said certificate that the defendant was unable to move during that period is fatal to the plea of illness, does not appear to be sound and justifiable. failure to deposit the amount within the stipulated period would disentitle the defendant to get the relief given to him under this judgment and the two miscellaneous appeals shall be..........defendant thereafter filed applications for setting aside the ex parte decrees on 10-7-1979. the learned subordinate judge having rejected those applications, the defendant has preferred the present appeals.3. the defendant's plea in his applications filed under order 9, rule 13, code of civil procedure, is that he suffered from dysentery and fever from 18-6-1979 to 25-6-79 and was bed ridden and on that score could not take part in the hearing of the suits on 22-6-1979. the plaintiffs filed objections asserting that the defendant wilfully defaulted in not appearing at the hearing only to harass the plaintiffs and even though he was present in the court on the date of hearing, but did not take part in the proceedings.4. in support of the plea of illness, the defendant examined himself.....
Judgment:

G.B. Patnaik, J.

1. Both these appeals were heard analogously and are disposed of by this common judgment since they involve common questions of fact and law. Miscellaneous Appeal No. 173 of 1980 is directed against the order refusing to set aside the ex parte decree in Money Suit No. 105 of 1977 and Miscellaneous Appeal No. 303 of 1980 is directed against the order refusing to set aside the ex parte decree passed in Title Suit No. 71-149 of 1978-79.

2. Money Suit No. 105 of 1977 was filed for compensation and damages for the loss of character of the plaintiff; Sipra Das and also for loss of opportunity for her marriage due to illicit pregnancy through the defendant and the delivery of the illegitimate child Nandita and for defendant's refusal to marry her in breach of his promise to do so. Title Suit No. 71-149 of 1978-79 was filed by Nandita, the illegitimate child, for her maintenance, present and future. Both the suits were posted to 22-6-1979 for hearing. On that day, the defendant remained absent in consequence of which he was set ex parte. The trial Court posted the suits to 30th of June, 1979 for judgment. On 30-6-1979, the judgment was delivered decreeing both the suits and formal decrees were drawn up on 6-7-1979. The defendant thereafter filed applications for setting aside the ex parte decrees on 10-7-1979. The learned Subordinate Judge having rejected those applications, the defendant has preferred the present appeals.

3. The defendant's plea in his applications filed under Order 9, Rule 13, Code of Civil Procedure, is that he suffered from dysentery and fever from 18-6-1979 to 25-6-79 and was bed ridden and on that score could not take part in the hearing of the suits on 22-6-1979. The plaintiffs filed objections asserting that the defendant wilfully defaulted in not appearing at the hearing only to harass the plaintiffs and even though he was present in the Court on the date of hearing, but did not take part in the proceedings.

4. In support of the plea of illness, the defendant examined himself as P. W. 1 and gave the evidence of the treating physician (P. W. 2). The plaintiff gave the evidence of her brother as O. P. W. 1. P. W. 1 in his evidence categorically reiterated what had been stated in the application filed under Order 9, Rule 13 and P. W. 2 corroborated his evidence fully. The certificate given by P. W. 2 was exhibited as Ext. 1 which states that P. W. 2 treated P. W. 1 from 18-6-1979 for dysentery and fever as an outdoor patient at Danagadi Primary Health Centre. The learned Subordinate Judge disbelieved the plea of illness as unfolded through the evidence of P. Ws. 1 and 2 mainly on the ground that the out-patient register maintained in the Primary Health Centre was not produced though summoned and the explanation offered by the doctor was not acceptable. Further, the learned Subordinate Judge also took serious view of the matter as to why in the certificate (Ext. 1) it has not been mentioned that the defendant was unable to move on account of his illness. According to the learned Subordinate Judge, non-production of the outdoor ticket by the defendant on the ground that it has been lost arouses suspicion regarding the alleged illness of the defendant.

5. The learned counsel appearing for the defendant-appellant contends that in view of the clinching evidence of the doctor of the Primary Health Centre under whose treatment the defendant was continuing, as well as his certificate (Ext. 1), the evidence of the defendant himself about his illness must be held to have been conclusively established and non-production of the out-patient register of the Primary Health Centre should not be a basis to discard the evidence of the doctor wholly. He further contends that the ticket issued to a patient in a Primary Health Centre is a small piece of paper which nobody usually preserves and, therefore, non-production of the same cannot be a ground to discard the cogent and convincing evidence of the defendant duly corroborated by the doctor.

6. It is no doubt true that the Out-patient register would have been the best piece of evidence in support of the fact that the defendant was being treated at the Primary Health Centre for his illness. But at the same time the plea of the doctor that the same was not traceable cannot be thrown away outright. Since it is common knowledge that in small places those registers are not kept with proper care and attention. That apart, it is not understood as to why the doctor would perjure himself and give false evidence in the Court to support the illness of the defendant. The certificate (Ext. 1) clearly indicates that the defendant was ill from 18-6-1979 to 25-6-1979. The observation of the learned Subordinate Judge that absence of any indication in the said certificate that the defendant was unable to move during that period is fatal to the plea of illness, does not appear to be sound and justifiable. No medical officer indicates in the certificate the exact condition of the patient. In my opinion, the evidence of the doctor (P. W. 2) has been illegally discarded by the learned Subordinate Judge. The said evidence of P. W. 2 fully supports the evidence of P. W. 1 and the certificate (Ext. 1) corroborates the said plea of illness. I would, therefore, disagreeing with the conclusion of the Subordinate Judge, hold, in the evidence on record, that the defendant has been able to establish that he was suffering from 18-6-1979 to 25-6-1979 and such illness prevented his appearance in the Court on the date of hearing of the suit on 22-6-1979. Consequently, it must be held that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing and, therefore, the ex parte decrees passed by the learned Subordinate Judge must be set aside.

7. In the result, the orders of the Subordinate Judge dated 15-4-1980 rejecting the applications under Order 9, Rule 13, Code of Civil Procedure, are set aside and the ex parte decrees passed by the learned Subordinate Judge in Money Suit No. 105 of 1977 and the Title Suit No. 71-149 of 1978-79 are set aside and both the suits are restored to the file of the Subordinate Judge to the stage where they were on 22-6-1979, subject to the condition that the defendant-appellant deposits a sum of Rs. 500/- (five hundred) as costs to be withdrawn by plaintiff-Sipra Das, within a period of one month from today. Failure to deposit the amount within the stipulated period would disentitle the defendant to get the relief given to him under this judgment and the two miscellaneous appeals shall be deemed to have been dismissed and the ex parte decrees would in that event shall remain. In the event of the suits being restored after payment of the necessary costs, as aforesaid, the learned Subordinate Judge would dispose them of within a period of three months from the date of receipt of the records by him.


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