The dispute is among three brothers & Ors. v. Gangabai & Ors.

The dispute is among three brothers. The plaintiff filed the suit agains t his two other brothers as defendants with the following prayers: a) (cid:28)For declaration that the registered document No. 1488 dated 12.03.2004 of Sub-Registrar, Karimganj is illegal, malafide, collusive and void and same is liable to be cancelled and facts relating to cancellation of registered documen t No.1488 dated 12.03.2004 to be transmitted to the office of Sub-Registrar, Kar imganj for noting the fact of its cancellation in the instrument as well as in t he relevant Volume Book. b) For declaration of plaintiff’s right, title, interest as well as possess ion in respect of immovable property as described in the schedule below which ac quired by way of registered Gift deed No. 399 dated 17.01.1981 & correction deed No. 437 dated 20.01.1981 and the plaintiff is entitled to demarcate the same in the form of partition with the landed property of defendant No.1 through the ab ove learned Court. For granting permanent injunction restraining the defendants from creati c) ng sale deed or any other kind of deed in respect of bonafide immovable property of the plaintiff as described in the schedule below in favour of any person man ner whatsoever. d) e) nd proper. (cid:29) For awarding cost of the suit. For such other or further relief/reliefs as the learned Court deem fit a The petitioner, who is defendant No.2 in the suit, received summons on 2 5.03.2011. However, because of his non-appearance, by order dated 30.04.2011, th e suit was directed to be proceeded ex-parte against him. The evidence of PW 1 w as filed on 17.08.2011 and when the matter was fixed for cross-examination of PW 1, the petitioner filed a petition on 26.08.2011, praying for vacating the ex-p arte order as well as for allowing him to file the written statement. As has bee n noted, rejection of this petition, has given rise to this application at the i nstance of the defendant No.2. The petition that was field on 26.08.2011, was registered as petition No . 744/14 and in the said petition, it was pleaded that because of his illness he could not contest the proceeding. The medical certificate, though was not annex ed with the said petition, subsequently, the same was brought on record. The med ical certificate is also placed on record of this revision petition. The petitio n was objected to by the plaintiff by filling an objection. It also needs to be noted that while the petition was pending consideration, the defendant No.2 had submitted his written statement on 18.11.2011. The learned trial court noted that the illness could not have prevented the defendant No.2 from appearing in the Court as the Court was barely 1 ‰ kilom eter away from his residence inasmuch as he could visit the doctor, whose reside nce is also about the same distance away from his residence and accordingly, hel d that no case is made out for acceptance of the written statement. The learned trial court also took note of the fact that the voluntary filing of the written statement also did not take place within 30 days, but was delayed for a period o f 40 days. Accordingly, the prayer of the defendant No.2 was rejected. Mr. Dey submits that the learned Trial court placed undue emphasis on th e distance of the residence of the petitioner from Court as well as from the res idence of the doctor without considering his illness. He submits that a patient has no choice but to go to a doctor in case of sickness and due to sickness, he could not take steps in the proceeding and as soon as he recovered from his illn ess, without any delay, the petitioner filed the petition for vacation of the ex -parte order as well as permission to file written statement. He places relianc e on the judgment in the case of Sambhaji and ors vs. Gangabai and ors,. reporte d in IX (2008) SLT 298. Mr. P. K. Roy, learned counsel for the respondent No.1 submits that the learned Trial court was justified to pass the order dated 05.01.2012 in the fact s and circumstances of the case and no interference with the same is called for. The facts are not in dispute. The medical certificate shows that the pet itioner was suffering from Muscular Rheumatism, Hyper Uricaemia, and Haemorrhoid s requiring treatment with rest from 27.04.2011 to 25.08.2011. It is to be noted that the learned Trial court did not disbelieve this medical certificate. The l earned Trial court rejected the petition primarily on the ground that the medica l certificate did not disclose as to whether he was granted bed rest or simple r est and that when he could go to the doctor’s place, he could have certainly tak en steps in the proceeding and filed written statement. In Sambhaji (Supra), the Apex Court, in the context of rejection of a prayer for filling written statement by the learned Trial court as well as by the High Cou rt, held that in a case where close relatives are litigants, a liberal approach is called for. In the facts and circumstances of the case, this Court is of the opinion that the petitioner was prevented from filing the written statement and appeari ng in the court due to his illness. Taking the aforesaid view, the impugned order is set aside. The written statement already filed by the defendant No.2 shall be taken on record. The ex-p arte order passed against the petitioner is set aside. The plaintiff will be at liberty to file the evidence of PW 1 afresh, if so desired. The revision petition is allowed with cost of Rs. 1,000/- to be paid to the plaintiff. The cost shall be deposited before the learned trial Court.