Mahila Rajabeti vs Kalavati & Ors.
2022 Latest Caselaw 12917 MP

                               1
         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                             BEFORE
          HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                   ON THE 26th OF SEPTEMBER, 2022

                  MISC. APPEAL No. 769 of 2003

       BETWEEN:-
       MAHILA        RAJABETI OCCUPATION:
       (MADHYA PRADESH)

                                                       .....PETITIONER
       (SHRI A.K.JAIN-ADVOCATE)

       AND
       KALAVATI    &           ORS. OCCUPATION:
       (MADHYA PRADESH)

                                                     .....RESPONDENTS
       (SHRI V.K. BHARDWAJ, SENIOR ADVOCATE WITH SHRI
       SANTOSH BHARDWAJ-ADVOCATE)

      This appeal coming on for hearing this day, the court passed the
following:
                                ORDER

Heard on I.A. No. 6305/2014, an application for deleting the name of Respondent No.3(g).

On due consideration same is allowed. Counsel for the appellant is permitted to make the correction on board.

Accordingly I.A.No.6305/2014 is disposed of.

Heard.

Appellant preferred this misc. appeal being aggrieved by the order passed by Second Additional District Judge, Morena in MJC No. 21/99 on

29.09.2003 by which application of the appellant under Order 9 Rule 9 CPC was dismissed.

In brief, facts of the case are that appellant filed a civil suit on 18.03.81 against respondent for declaration and injunction. After framing of issues case was fixed for her evidence on 8.12.90, 5.1.91, 26.02.92, 10.05.95, 03.11.98 and 29.07.97 but she could not adduced her evidence. Thereafter, on 29.07.97 she was directed by trial Court that if on the next date she will be unable to produce her evidence, as per order 17 Rule 2 CPC action be taken against her. Despite this, on 25.08.99 she remained absent. Neither she appeared nor her Advocate appeared before the court. Due to non-absence of appellant/plaintiff trial court proceeded under

Order 9 Rule 8 CPC and dismissed her suit. Aggrieved by the aforesaid order of dismissal appellant filed an application under Order 9 Rule 9 CPC for restoring her suit on 14.09.99 on the ground that on the date fixed she was not well. Her blood pressure was high. She got treatment from Dr. R.C. Bandil. In support of her application, she adduced her evidence of herself and her husband Jagdish and Dr. R.C. Bandil. In her statement appellant has stated that she was suffering from hypertension from last 25 years. She is taking treatment from Dr. Bandil. On 25.08.99, due to illness she along with her husband had gone to government hospital Morena and got herself treated by Dr. R.C Bandil. The certificate Ex-P/1 has been prepared by her husband. Her husband has adduced that on the aforesaid date i.e. 25.08.99 between 10.00 to 11.00 am he along with her wife went to government hospital, prepared a parcha, thereafter, purchased medicine. Certificate produced by appellant is not of government hospital. In

certificate there is no OPD number. Neither looking to the aforesaid certificate, it can be presumed that aforesaid certificate was issued in government hospital because appellant and her husband has stated that they had gone to government hospital, prepared a parcha there, thereafter got treatment and purchased medicines. Besides this, appellant has adduced that he was taking treatment from Dr. Bandil from last 25 years but Dr Bandil has denied in his cross-examination that he knows the present appellant. As per Rajabeti/appellant she had visited hospital at 8.00 am but her husband has stated that they gone between 10.00 to 11.00 am. There is no patient registration number on the aforesaid certificate despite going to government hospital. Besides this, husband of the appellant Jagdish in his cross-examination in para 8 has admitted that he got prepared Ex-P/1 certificate after 2-3 days of 25.08.99 i.e. date of dismissal of civil suit.

Counsel for the appellant relying upon the judgment passed in the case o f Samotibai vs. Dhannalal (M.A. No.903/2001 (I) decided on 27.01.2005 in which it has been held that the application for the restoration of the suit or petition should be allowed if the "sufficient cause" is shown and in each case it is a question of fact that what construed the sufficient cause. The word "sufficient cause" should receive liberal consideration in order to do substantial justice.

Looking to the aforesaid facts and evidence came on record and

previous conduct of the appellant, the court below has rightly dismissed her application. The same does not call for interference by this Court.

Therefore, this appeal deserves to be dismissed. Accordingly, the Misc. Appeal is dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE Van

VANDANA VERMA 2022.09.27 11:28:13 -07'00'