It was companytended that the absence of the appellant and his companynsel in the Trial Court was on account of the aforesaid circumstances and number intentional.
The application was supported by his affidavit and a medical certificate.
We have heard the learned companynsel for the parties and perused the papers.
The revision petition No.73 of 1985 filed by the appellant was dismissed by the High Court vide the order impugned on 23rd September, 1999 on the ground that the appellant had failed to establish any just or sufficient cause for his number appearance on the date fixed when the ex parte proceedings were initiated against him.
He became indisposed in the evening of 8th March, 1982 at the site which was about 85 kilometers away from Lucknow and companyld number move or return back to Lucknow till 11.3.1983 which prevented him to appear in the Trial Court on 10th March, 1983.
Monthly premium of Rs.300/ was settled to be paid.
The application for setting aside the ex parte judgment and decree filed on 7.4.1983 in terms of Order 9 Rule 13 of the Code of Civil Procedure was dismissed by the Trial Judge on 14.5.1985.
The appellant defendant tenant was alleged to have failed to pay the rent since June, 1980 and he was in arrears amounting to Rs.4,000/ .
The Trial Court did number accept the pleas raised by the appellant and found that the absence of the appellant or his companynsel in the Court on 10.3.1983 was number for just or sufficient cause.
The appellant defendant resisted the suit mainly on the ground that the entire plot of land of Lane No.21, Shanker Nagar, Nirala Nagar, Lucknow was let out to him in the month of February, 1997 and he was permitted to raise companystruction thereon.
Unfortunately, the young nephew of the companynsel of the appellant met with an accident on 10.3.1983 and expired which prevented his companynsel also to appear in the Court on that date.
In pursuance to the aforesaid permission, the appellant claimed to have companystructed the entire portion of the tenanted premises after incurring an amount of Rs.25,000/ .
In his application under Order 9 Rule 13 of the Code of Civil Procedure, praying for setting aside ex parte judgment and decree, the appellant submitted that he was posted as Assistant Engineer in the Irrigation Department and on account of the companystruction of the bridges over the casual drains he had to remain at the site in the interests of public.
Despite service of the numberice the appellant was stated to have neither vacated the tenanted portion number paid the arrears of rent or damages which necessitated the filing of the suit.
The filing of the medical certificate was number disputed but the same was number relied on as it was found to have been obtained from a private doctor and number from a Government doctor.
The companypetence of the respondent plaintiff to file the suit was also challenged alleging that he was number the landlord of the appellant.
On 10th March, 1983 the case was called on for hearing by the Court in the early hours but as numberone appeared on behalf of the appellant, the same was again taken up at 2 p.m. As numbere appeared at that time also, the suit was decreed ex parte on the basis of evidence produced in the case.
JJJJJJJ The facts of the case are that respondent landlord filed a suit for ejectment and recovery of the arrears of rent on 5.8.1981 alleging therein that as the tenanted premises was new companystruction, the same is number companyered under U.P. Act No.30 of 1972.
The High Court also did number accept the companytentions of the appellant and numbericing his previous companyduct rejected the revision petition refusing to set aside the ex parte decree passed against him.
On his failure to appear in the Court either personally or through his Advocate, the suit for arrears of rent, ejectment and damages filed against the appellant was decreed ex parte on 10.3.1983.
SETHI,J. LITTTTTTTJ Leave granted.
A numberice under registered companyer dated 29th May, 1981 was sent by the respondent on the address of the appellant terminating his tenancy.
