N.N. Mithal, J. - (1.) This is defendants' appeal directed against the order dismissing the application for setting aside the ex-parte decree dated 12th February, 1987.
(2.) It appears that there were several defendants in the suit and after a long delay, service could be effected on them. Even after the finding of the written statement, several adjournments were taken and every effort was made by them to delay the hearing of the suit. Ultimately 19th January, 1987 was fixed for hearing, on which date, the defendants remained absent. The next date fixed was 12th February 1987 and on that date again the defendants absented. The court, therefore, passed ex-parte decree on that date. In the application and the affidavit in support of the application for setting aside the ex-parte decree, it was alleged that the appellant was suffering from Jaundice on both the dates fixed it was only on 15-2-1987 that he had recovered. He also filed a medical certificate of Dr. K.K. Kapoor dated 20-2-1987 along with his affidavit. The court below has rejected this medical certificate on two grounds. Firstly it is said that the signatures of the patient have not been attested by the doctor and secondly the medical certificate is in respect of some other disease than the one mentioned in the affidavit. It has been urged by the learned counsel that in the affidavit it was mentioned that Sudhir Kumar Agarwal, deponent, was suffering from jaundice while in the certificate the disease is mentioned as Hepatitis. In fact jaundice is one of the forms of Hepatitis and the view of the court below that there was some variance between the two does not appear to be correct. When in the affidavit the disease was mentioned as jaundice it was in the general form and in the medical Certificate the doctor has given its medical name, which is not used in common parlance. On the other question also I do not find that merely because the signature has not been separately attested, it does not mean that the certificate is a forged one. In fact the medical certificate itself bears the signature of Sudhir Kumar Agarwal and in the last line of the certificate, the doctor has clearly mentioned as below : "The signatures are given below." The sentence itself was enough attestation of the fact that the signature of Sudhir Kumar Agarwal on the certificate were of the patient, in these circumstances, both the grounds on which the learned court below has rejected this affidavit and the certificate are not sustainable.
(3.) The court below has further said that there were other defendants also who could appear and no reasons for their absence have been given. Here again the learned court below appears to be wrong since the paragraph 6 of the affidavit it is clearly mentioned that the other defendants Gauri Shankar and Ravi Kumar Agarwal were also ill during the relevant period. These facts have not been controverted by the plaintiff by means of an affidavit or otherwise. In view of the above circumstances, it is quite clear that there was enough evidence in support of what the defendants had to say in the matter and their plea should have been accepted by the court below.;