S.K.KESHOTE, J. - (1.) HEARD learned counsel for the parties and perused the revision petition and the order of the learned trial court dated 27th September, 2000 under which the application filed by the petitioner under Order 9 Rule 7 CPC was rejected.
(2.) THE plaintiff respondent No. 1 filed a suit for partition along with an application for grant of temporary injunction against the defendant petitioner and defendant proforma respondents. 17th October, 1996 was the date fixed for filing written statement in the suit. On that day, neither the defendant petitioner nor his counsel appeared, therefore, the court order to proceed ex parte in the suit against him. The proceeding continued for grant of temporary injunction and no progress whatsoever has been made in the suit. On 13th July, 2000, the defendant petitioner moved an application under Order 9 Rule 7 CPC duly supported by an affidavit. In the said application it is stated by mistake instead of '17th' date has been mentioned as '7th October 1996' which was fixed for filing the written statement. It is stated in the application that the written statement was prepared by the counsel in the month of September, 1996. On 29th September, 1996, the petitioner had to go to Sikar and there he suffered infection in his urinary track and had to undergo treatment from 1st October, 1996 to 15.10.1996 and thereafter he was advised to take rest for 16th October, 1996 to 25th October, 1996, hence, he could not appear on that day. The petitioner submitted medical certificate of Government Shri Kalyan Hospital, Sikar bearing No. 69927 of Outdoor Patient Register with slip of prescription. This application was contested by the plaintiff respondent No. 1. It is contended that the date of ex parte order filled in the application by the petitioner as 7.10.1996, which is not correct. The defendant petitioner on detection of this typographical error in the application, moved an application for grant of permission to make necessary correction therein. Both these applications were taken together for hearing and the same have been dismissed by the learned trial court under impugned order. Thus, this revision petition.
(3.) I have gone carefully through the order of the learned trial court. The suit is only at this stage of framing of issues. The suit is for partition. There crept is typographical error in the application. It is unfortunate, learned trial court instead of considering the substance of the matter has gone on technicalities. The learned trial court acted wholly perversely in not believing the medical certificate produced by the defendant petitioner. The learned trial court has not said or recorded that this certificate is not reliable. If we go by any date i.e. '7th' or 17th October, 1996, we find from the medical certificate that on both these dates the defendant petitioner was not in a position to attend the court. In the application, though the date of absence 7th October, 1996 is mentioned but an application was filed for grant of permission to make correction therein and that application has not been decided. Thus, the learned trial court has committed a serious illegality in holding that the application is not bona fide one. In case, the order of the learned trial court is allowed to stand will certainly occasion a failure of justice for the defendant-petitioner.;