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Chakradhar Choudhury Vs. Padmalav Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 790 of 1981
Judge
Reported inAIR1983Ori184
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 9
AppellantChakradhar Choudhury
RespondentPadmalav Das and ors.
Appellant AdvocateJ.P. Misra and ;L. Mohapatra, Advs.
Respondent AdvocateN.C. Pati, ;B.H. Mohanty, ;J.K. Bastia and ;Nandini Misra, Advs.
DispositionRevision allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........case no. 51 of 1980 was called on as he was suffering from high blood pressure. the plaintiff opposite party no. 1 refuted the allegation of illness of the petitioner.3. in support of his illness, the petitioner examined two other witnesses to corroborate his version and proved theentry in the out-door patients' register maintained at the puri headquartershospital. one dinabandhu sahu hasbeen examined as p. w. 1. he provedthat on 2-2-1981 the petitioner wasexamined as an out-door patient bydr. dhal. the evidence of the petitionerexamined as p. w. 2 has also been corroborated by the evidence of p. w. 3.no evidence was adduced by the plaintiff-opposite party no. 1. the learnedsubordinate judge disbelieved the causeshown for non-appearance holding thatit was not proved by the.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This is an application in revision against an order passed by the learned Subordinate Judge. Jaipur, rejecting the petitioner's application under Section 151 of the C. P. C. for restoration of Miscellaneous Case No. 51 of 1980.

2. The petitioner has alleged that he could not be ready for hearing on 5-2-1981 when Miscellaneous Case No. 51 of 1980 was called on as he was suffering from high blood pressure. The plaintiff opposite party No. 1 refuted the allegation of illness of the petitioner.

3. In support of his illness, the petitioner examined two other witnesses to corroborate his version and proved theentry in the Out-door Patients' Register maintained at the Puri HeadquartersHospital. One Dinabandhu Sahu hasbeen examined as P. W. 1. He provedthat on 2-2-1981 the petitioner wasexamined as an out-door patient byDr. Dhal. The evidence of the petitionerexamined as P. W. 2 has also been corroborated by the evidence of P. W. 3.No evidence was adduced by the plaintiff-opposite party No. 1. The learnedSubordinate Judge disbelieved the causeshown for non-appearance holding thatit was not proved by the petitioner thathe had become immobile which prevented him from attending the courton the date of hearing and in the absence of any evidence with regard tothe exact physical and mental conditionof the petitioner on 5-2-1981, he couldnot be said to have sufficient cause fornon-appearance.

4. Having considered the case of the petitioner, it appears to me that the learned Subordinate Judge has been too strict in his appreciation of evidence. The mental state, of a person is subject to and dependant upon other faculties of the person concerned. With the same type of illness one person may be going about his errands while another may be nervous and panicky and consequently disabled. Of course fanciful pleas are not acceptable. However, in the facts and circumstances, I hold that petitioner had sufficient cause for non-appearance on the date fixed and the learned Subordinate Judge exercised jurisdiction illegally in rejecting his application.

5. In the result, the order impugned is set aside and the revision is allowed subject to the condition that the petitioner shall pay as costs a sum of Rs. 150/- (One hundred and fifty) to the counsel for the opposite party No. 1 here within two weeks from today failing which the revision shall stand dismissed without further reference to Bench.


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