S.Acharya, J. - (1.)THE Appellant in Miscellaneous Appeal No. 191/75 was Defendant No. 2 in Money Suit No. 339/70. The Appellants in Miscellaneous Appeal No. 203/75 were Defendants 1 and 3 in the said money suit. The above mentioned suit against the Appellants in both the appeals was decreed ex parte on 24 -7 -1975. So, the Appellants in Misc. Appeal No. 191/75 and Misc. Appeal No. 203/75 filed petitions under Order 9, Rule 13, Code of Civil Procedure read with Section 151, Civil Procedure Code for setting aside the said ex parte decree against them. On their petitions Misc. Case No. 19/75 and Misc. Case No. 20/75 1 respectively were registered. Both the petitions having been rejected by the Court below by its orders dated 25 -11 -1975 in the said Misc.. Case, they have preferred these two appeals. As the facts in both the cases are almost identical and the points for consideration are the same, they were taken up for analogous hearing, counsel appearing for the respective parties advanced only one set of arguments, and so they are being disposed of by this one judgment.
(2.)BECAUSE of the pleadings of the respective parties in the suit Defendants admittedly were at first to lead evidence in the suit. On 24 -7 -1975, to which date the suit was set for hearing 1 and the Defendants were to lead evidence, Defendants 1, 2 and 3 (the Appellants in both the appeals) filed two petitions for adjournment of the hearing of the suit on the ground that Defendants 2 and 3 could not come to Court on that date due to their illness. Along with the petition filed by Defendant No. 2, a medical certificate was filed in support of his illness. The petition filed on behalf of Defendant No. 1 (a Company) and Defendant No. 3 was not supported by any medical certificate. As the doctor, who granted the medical certificate attached to the petition filed by Defendant No. 2, had advised complete rest for Defendant No. 2 for 15 days but all the Defendants wanted adjournment of the suit for one month, the Court below disbelieved the grounds on which the petitions for adjournment were filed, and it rejected the said petitions and directed the Defendants to get ready for the hearing of the suit at once. As the Defendants did not adduce any evidence, the suit was taken up for ex parte hearing, and without examining any witness on behalf of the Plaintiff and merely on the submissions of the counsel of the Plaintiff the Court closed the hearing of the suit and delivered the ex parte judgment on 31 -1 -1975. Thereafter on 7 -8 -1975 the above mentioned Defendants filed petitions under Order 9, Rule 13 read with Section 151, Code of Civil Procedure for setting aside the said ex parte decree, and the said petitions were dismissed by the orders which are now impugned in these two appeals.
The case put forward by Defendant No. 2 in Misc. Case No. 19/75 is that from 20 -7 -1975 he was suffering from Para Typhoid till after the date of hearing of the suit, and so on 24 -7 -1975 when the suit was set for hearing he was not in a position to take any steps for the hearing of the suit and therefore he through his lawyer, prayed for adjournment of the hearing of the suit by furnishing a medical certificate in support of his illness. The Plaintiff opposite party in the said Misc. Case challenged the Petitioner's case of illness as false and asserted that Defendant No. 2 was present in Court on the date of hearing and instructed his lawyer to file the petition for adjournment. At the hearing of that Misc. Case the Defendant No. 2 examined himself, the doctor who granted the medical certificate and his Law Agent. On behalf of the Plaintiff -opposite party, the Field Officer and an Office Assistant of the Plaintiff. Company were examined. The Court below, on its own appreciation of the evidence on record, disbelieved the Petitioner's case of illness at the relevant time, held that he intentionally defaulted to take part in the hearing of the suit, and accordingly it dismissed the Petitioners prayer to set aside the ex parte decree.

(3.)THE case put forward by the Petitioners in Misc. Case No. 20/75 (Defendants 1 and 3 in the suit) was that Defendant No. 3, who was looking after the case on behalf of the Defendants, was suddenly laid down with high blood pressure from 23 -7 -1975 and so he could not take part in the hearing of the suit on 24 -7 -1975. It was pleaded that there was no intentional default on the part of the Petitioners to get ready for the hearing of the suit. The Plaintiff resisted the said petition by stating that the case put forward by the Petitioners for setting aside the ex parte decree was false Defendant No. 3 was not sick on the date of bearing he was present in the Court premises during the Court hours on the date of hearing, and was instructing his employees to file petitions for adjournment of the suit. On behalf of the Petitioners in this Misc. Case, Defendant no 3 and the Advocate's Clerk who was looking after the suit on behalf of these Defendants were examined. The opposite party examined the Advocate's Clerk who was looking after the suit on its behalf, one Sales Officer and one Assistant of the Plaintiff -Company. The Court, on its own appreciation of the evidence adduced, found that Defendant No. 3 was not ill at the relevant time: he intentionally defaulted to take steps for the hearing of the suit, and accordingly it dismissed the said petition for restoration of the suit.