Dibakar Pattnaik vs State of Orissa and Another

P.K. Misra, J.—The plaintiff has filed this appeal against the order of the Civil Jude (Sr. Divn.), Dhenkanal, rejecting the application under Order 41, Rule 19 of the CPC (for short, ''C.P.C.''), filed by the present appellant for re-admission of T.A.No. 27 of 1 993. It appears that the Court below has taken into consideration the previous negligence of the present appellant and rejected the application for re-admission. It has been held in Nanak Chand Khandelwalla and Others Vs. Fakir Chand Khendelwalla and Another, that the previous negligence of a party cannot be considered as a ground for disbelieving the sufficiency of cause shown on the date of dismissal.

It further appears that the lower appellate Court has disbelieved the plea of illness on the ground that no medical certificate had been furnished. It appears from the record that the appellant himself has stated about the illness of the counsel and nothing substantial had been o elicited in his cross-examination to disbelieve such evidence. In such view of the matter, it was not proper on the part of the lower appellate Court to disbelieve the evidence on the ground of non-production of a medical certificate, as it is well known that in many such cases of occasional ailments even the doctors are not consulted.

For the aforesaid reason, the appeal is allowed and T.A.No. 27 of 1993 is readmitted. Learned counsel for the appellant undertakes that the appellant shall co-operate in the early disposal of the appeal.