High Court · 2012

Heard Mr. N. Choudhury, learned counsel for the petitioner and Mr. G.N. Sahewall a, learned counsel for the opposite party. This application under article 227 of the Constitution of India is directed agai nst the order dated 30.7.2012 passed by the learned Munsiff No. 1, Dibrugarh in Misc.(J) Case No. 64 of 2011 arising out of Title Suit No. 51/2007 restoring the suit after 1128 days from the date of dismissal of the suit for default on 5.8.

2008. The opposite party as plaintiff instituted Title Suit No. 57 of 2005 against the petitioner in the Court of Civil Judge, Senior Division, Dibrugarh. The suit wa s transferred to the Court of learned Munsiff No. 1, Dibrugarh and was renumbere d as Title Suit No. 51 of 2007. The suit was filed for recovery of khas possessi on by ejecting the defendants, its dependants and any other person working under it from the suit premises, recovery of Rs. 38,000/- etc. The landlord / plainti ff filed the suit for ejectment of the tenant / defendant on the ground of bonaf ide requirement and default. At the stage of cross-examination of the plaintiff, on 25.6.2008 and 5.8.2008, n o steps were taken on behalf of the plaintiff and consequently, the suit was dis missed for default on 5.8.2008. Subsequently, the plaintiff filed a composite petition under Order 9 Rule 9 read with Section 151 CPC and under Section 5 of the Limitation Act, hereinafter ref erred to as ’restoration application’, for restoration of the suit and for condo nation of delay. The application was numbered as Misc.(J) Case No. 64/2011. The tenant / defendant filed objection to the said petition and both the parties exa mined one witness each. After hearing the learned counsel for the parties, on consideration of the mater ials on record, by the impugned order dated 30.7.2012, the learned Trial Court r estored the suit to file by setting aside the order of dismissal for default. Mr. N. Choudhury, learned counsel for the petitioner submits that the plea taken by the plaintiff in the restoration application to the effect that the plaintif f was suffering from cancer was concocted and the plaintiff had miserably failed to prove that he was so suffering. Even assuming that the plaintiff was sufferi ng from cancer, the plaintiff was in the same place where the suit was institute d and therefore, the plaintiff failed to show sufficient cause for not appearing and for not taking appropriate steps, he submits. Learned counsel submits that the learned Trial Court wrongly passed the impugned order for restoring the suit although the plaintiff could not demonstrate that he was prevented by sufficient cause from taking appropriate steps in the suit r esulting in dismissal of the suit for default. In substance, argument of Mr. Cho udhury is that the plaintiff failed to show sufficient cause for condonation of delay and for restoration of the suit. Mr. G.N. Sahewalla, learned Senior Counsel for the plaintiff submits that the de fendant in his cross-examination had admitted that the plaintiff was suffering f rom cancer and that he was undergoing treatment in Mumbai. Learned Senior Counse l has produced before the Court the certified copy of the cross-examination of t he DW1 in Misc. Case No. 64 of 2011. Learned Senior Counsel submits that Ext. 2 , brought on record by the plaintiff, unmistakably pointed out that the plaintif f was undergoing treatment for long 3 years in Mumbai. It is also submitted by h im that it is not the case of the plaintiff that he was constantly in Mumbai for his treatment and therefore, the presence of the plaintiff at Dibrugarh during the period of his ailment, does not in any manner negate the factum of his illne ss. It is also contended by him that having been suffering from cancer, the plai ntiff was not in a state of mind to pursue litigation and soon after he finally recovered, he had taken steps in the matter for restoration of the suit, which w as dismissed for default. Learned Senior Counsel submits that the plaintiff did not stand to gain by delaying the filing of application for restoration as he wa s seeking ejectment of the defendant and the delay in filing the restoration app lication was due to reasons beyond his control. Lastly, learned senior counsel s ubmits that the petitioner has failed to make out any case for interference with the impugned order by this Court in exercise of its power under Article 227 of the Constitution of India. I have heard the learned counsel for the parties and have perused the materials on record. Ext. 2 is a certificate dated 12.8.2011 issued by the Surgical Oncolo gist of Prince Aly Khan Hospital, Mumbai certifying that the plaintiff was diagn osed and treated surgically for cancer on the right cheek in September, 2008 and he had been on regular follow-up and undergoing treatment since then. The certi ficate recited that though he can resume his normal activities, he needs to foll ow-up regularly as he is a cancer survivor. The learned Court below did not dis- believe Ext. 2. The fact that the plaintiff was suffering from cancer and underg oing treatment at Mumbai is also admitted by defendant / tenant in his cross-exa mination. The restoration application was filed almost immediately after the cer tificate was issued by the treating doctor at Prince Aly Khan Hospital on 12.8.2 011. When the illness of the plaintiff is not dis-believed, this Court finds it difficult to accept the contention advanced by Mr. Choudhury that as during the period of his treatment, the plaintiff was in Dibrugarh, he ought to have taken necessary steps in pursuing the suit which he had instituted. It is not difficul t to hazard a guess the turmoil and anguish that a person is likely to suffer on account of suffering from an illness like cancer. The explanation put forward by the plaintiff is not untrue or wholly unbelievabl e. In view of the above discussion, I find no good ground to interfere with the ord er under assailment and accordingly, the petition is dismissed. No costs.