N.L.Ganguly - (1.) A suit for arrears of rent and eviction was filed against the petitioner by the landlord on the ground of default. The rate of rent was said to be Rs 50/- per month and the arrears claimed was for a period of 1-6-77 to 5-12-79. The suit was filed on 14-1-80. A written statement was filed by the petitioner 10-7-85 was the date fixed for recording of evidence in the case. The petitioner could not attend the court on the date fixed oh the ground of ailment of dysentry. Since on the date fixed, the petitioner was absent, the court was directed to proceed with the case exparte. After recording the statement of the plaintiff exparte, the suit was decreed by an order dated 22-7-85, decreeing the suit for arrears of rent for the period claimed for a sum of Rs. 1953.30p. and the damages was also awarded at the rate of Rs. 10/- per day as claimed in the plaint. An application under Order 9 Rule 13 was filed by the petitioner-tenant for setting aside the expatte decree along with a medical certificate that the petitioner was ill on 8-7-85 till 13-7-85. The learned trial court rejected the application and refused to set aside the exparte decree and restore the suit to its original number. Against the said order, a revision was filed which two was rejected by an order dated 13-2-89.
(2.) BEING aggrieved by the judgments of the trial court and the revisional court, the present writ petition was filed. The petition was kept pending. An interim order was passed by this court without any direction for payment of any amount by the tenant during the pendency of the writ petition. The matter was pending and on application of the tenant-opposite party, this Court was pleased to pass an interim order dated 17-11-92 by which it was directed that an amount of Rs. 5000/- be deposited within six weeks from the said date through bank draft to the learned counsel for the respondents Sri B. B. Paul. It was said that in case of default, the interim order dated 26-7-89 staying the execution of the decree would stand automatically vacated. Before the petition could be argued on merits, the learned counsel for the landlord-opposite party Sri P. B. Paul raised a preliminary objection. He submitted that the petitioner has not complied with the order dated 17-11-92. He has failed to deposit Rs. 5000/- as directed. The learned counsel submitted that the petitioner is not entitled to be heard as he had not complied with the direction of the Court. Sri V. B. Singh, learned counsel for the petitioner stated that Rs. 8000/- was paid through bank draft to the landlord-opposite party in the name of Sri B. P. Paul which was actually handed over to him. Sri Paul has not disputed this fact that he has received the bank draft of Rs. 3000/-. An application was moved by Sri V. B. Singh which is dated 27th December 1992. It was actually presented before another Single Judge on 8-1-93. It was put up before me as it required modification of my order dated 17-11-92. No doubt the application dated 27-12-92 which was taken back for presentation before me was not actually presented before me and it has been filed today in the court before the arguments. A copy of this application had already been served to the learned counsel for the respondents on 22-12-92. It has been stated in the affidavit that Rs. 2275/- had already been deposited by the petitioner by various tenders in the Court of Addl. Civil Judge. In the application Sri V. B. Singh, Advocate had prayed that the three months' time be granted for making further deposits. It is correct that no orders were passed for modification of the order dated 17-11-92 and the petitioner perhaps was himself willing to deposit Rs. 2000/- as directed by the order dated 17-11-92. Technically it is correct that the total amount, as indicated by me order dated 17-11-92 was not complied with but it is a fact that if both the amounts are taken into consideration, more than Rs. 5000/- have been deposited. Sri B. B. Paul submitted that since the petitioner has not complied with the orders of this court and he himself had asked for three months further time, it is not 'possible to take into consideration the amount of Rs. 2275/-. The learned counsel for the respondents Sri B. B. Paul strenuously urged that the petitioner be not heard he has not complied with the orders of this Court dated 17-11-92. I have given anxious thought on the submission of the learned counsel for the respondents Sri B. B. Paul. The courts are not meant for adhering to mere technicality of law but are supposed to do justice between the parties. I have myself calculated the amount of rent roughly from the date of decree till date and it appears that substantial amount and perhaps the whole amount of rent stands satisfied if the rent is taken as Rs. 50/- per month as claimed in the plaint. No doubt, if the amount of Rs. 10/- damages per day is taken into consideration, the decretal amount would swell to a higher figure of Rs. 40,000/- as stated by Sri B. B. Paul. I am of the opinion after hearing the learned counsel for the parties that it would not be fair and desirable to shut the petitioner from arguing the writ petition an merits itself when the petition is ready and ripe for hearing.
(3.) I would proceed to decide the writ petition on merits. The matter for consideration for this court is whether the Trial Judge was legally correct in refusing to set aside the exparte judgment and decree passed by him on 22-7-85. I have perused the judgment of the trial court, as well as the revisional Court. It is not disputed that the application for setting aside the exparte decree and restoration of the suit to its original number was filed by the petitioner within seven days from the date of the exparte decree. The first question that is to be considered is that whether day-to-days explanation has to be given for filing the application for recalling the order and restoration. The period of limitation for filing the restoration application is 30 days according to Limitation Act and the present application was well within time. One of the factor dealt with by the learned Trial Judge that day-to-day explanation was not given by the petitioner in his application. I am satisfied that the learned Trial Judge was wholly erroneous, in taking a view that day-to-day-delay was to be explained even when the application for setting aside the restoration was filed within the prescribed limitation, secondly, the other aspect for rejecting the application was that the petitioner's medical certificate showing that the petitioner was suffering from dysentry between the period 8-7-85 to 13-7-85 was believable or not. The learned Trial Judge observed that the petitioner has not established ?his fact that he was incapable of movement during this period. It has also been said that the Doctor's certificate is dated 13-7-85. It has been argued by the learned counsel for the respondents that there is no medical certificate to show that on 8-7-85 the petitioner was actually ill. It is common knowledge that on the first date of the ailment when a person goes for treatment, does not obtain a certificate that he has fallen ill and is under treatment. It is general practice that a certificate is taken when the ailments are practically cured. Anyway, the approach of the trial court and the revisional court, in those aspect . that the medical certificate do not indicate that the petitioner was confined to bed and was not in a position to come to the court appears to be peculiar and perverse view taken by the courts below. The learned counsel for the respondents Sri B. B. Paul submitted that the medical certificate was not from a MB. B. S. Doctor and that it does not show that the petitioner was actually confined and unable to move is not proved and not believed by the courts below. This is nothing but a finding of fact recorded by the subordinate authority. He submitted that this finding of fact cannot be examined under Art. 226 of the Constitution of India. I do not agree with the submission by the learned counsel for the respondents. Such facts are open to examination if they are patently perverse on its face. It i,s well know that a dysentry patient is not expected to go in public and if such an expectation is expected from a person, who is defendant to the suit, is too much to expect and is rather a perverse thinking I am of the opinion that the reason for arriving to the said finding cannot be sustained for a moment.;