- (1.) THE office report shows that the first respondent is served, but the second respondent, who is the wife of the first respondent, has refused to accept service of notice on 1/2/2006. In the circumstances, it shall be deemed that the second respondent has been duly served.
(2.) DELAY condoned. Leave granted. This appeal is directed against two orders of the High Court, one dtd. 5/5/2003 and the other dtd. 2/2/2005 seeking a review of the former order. The short facts are that the appellant was sued for damages on the ground of negligence before the trial court at Sultanpur. The appellant, who had previously been posted at Sultanpur, was transferred to Sitapur, which is about 300 km away. In those circumstances, neither could he reach the trial court at Sultanpur for hearing on 21/10/1998 nor did his advocate appear before the trial court. Consequently, the trial court held ex parte hearing, recorded the statement of the plaintiff and closed the evidence by fixing 30/11/1998 as the date for arguments. On the same day, on coming to know that the case had been heard ex parte, the appellant made an application for setting aside the ex parte order and sought an opportunity to participate in the proceedings. The trial court rejected the application. A revision carried to the High Court was dismissed by the impugned order dtd. 5/5/2003 and an application for review of the said order was rejected by the impugned order dtd. 2/2/2005.
(3.) HAVING perused the record and heard the learned counsel, we are satisfied that the appellant should have been permitted an opportunity to participate in the proceedings by setting aside the ex parte order, if necessary, by awarding costs. It was particularly so in view of the fact that this suit was one for damages on account of negligence against a medical practitioner, which necessarily involves professional evidence.;