i l ) i 5 1 i ‘ \ g \ 3g? HIGH COUR! OF GHHATTISGARH AT ’BILASPUR i ie ch'Ho ’b riJu ‘ceP at K‘ m r ish, W ' 'tion C 0.3 01! ? PETFHONER Joshiram VerSU§ Mahash and «hers ORAL ORDER (26.1 0.201 0) The petitioner has chalienged the orders passed bythe two Courts behw dismi$sing his apmiWon for setting aside the ex-pada decree dated 05-02-1 986. (2) Plaintiffs have med the suit for decimation, partition and 19%. The petitioner appeared before the triai Court after receiving the summons and prayed for time to ii separats possession in December, is written subsequentiy he did not appear before the trial Court and ex~parte decree was passed against him on 05-024 986. statement however, (3) Shri PR. Pmnkar. iearned counsei appearing for me; petitioner would argue that the Courts beiow have not properiy appreciated the explanation submitted by the petitioner that he could not appear on the detes of hearing because of his iiiness and that an opportunity needs toebe granted for [contesting the case on merits. ‘1/ K23 (4) Shri Sanjay Patei, leamed counsel appearing for respondents No. 1 to 3 wouid argue that from the statement made by the petitioner during M.J.C. proceeding it would be clear that the reason assigned for non-appearance is - absoiuteiy raise and frivolous. He would submit that both the CourB below have appreciated the entire facts of the case and have reached to the r conclusion that the present is a case where the petitioner deiiberately chose not to appear in the Court and thus the petitioner does not deserve indulgence and that in the facts and circumstances of the case exercise of power under Article 227 of the Constitution of lndia is not warranted. ml (5) According to the petitioner he was not keeping well for the period during 10-10-1985 to 1903-1986 and thus when the ex-perte decree was passed on 05-02-1986 he was not welt, therefore the decree deserves to be set-aside. The trial Court has observed that on the one hand the petihoner has tited a certiiicate about his iliness from 10-1 0-1 985 to 19-03-1986 and on ~ the other hand he himself appeared in the Court on 17-10-1985 thusthe medicat oertihcate and the ground of illness is not found to be convincing. (6) ln his statement during M.J.C. proceeding the petitioner has stated ~ that he had appeared in the Court and had sought time to hie written statement. He also admi$ that the counsel engaged by him had not sent any letter to him and that when the counsel asked for fees he asked for sometime as he was not having sufficient funds and thereafter he engaged another counsel. He also admits that the viliagers namely Bharosa, Sarju, Arjun and Mantram informed him about the decree and hearing this he said r a that when the Process Sewer would visit the village for affecting partition the matter will be looked into meaning thereby he wiii take steps for setting aside ex-parte decree as and when execution begins. r2 h E3“ (7) From what has been found by the Courts below as aiso dear from the petitioner’s statement, it would be apparent that the petitioner was aware of the ex-patte decree and did not hke steps within timeand instead he went to the tawyer, sought opinion for raising a ground about his iilness and on the suggestion of the Iawyer he obtained the medicei certiiicate. (8) it is atso to be seen that the present is a suit for dectaration and partition, wherein the petitioner has also been altotted 4/9 share in the suit Pmpefty. (9) For all these reasons, this Court is not inclined to interfere with the ooncurrent orders passed by the two CouM betow refusing to set-aside the ex-parte decree. The present is not a fit case for interference in exercise of Article 227 of the Constitution of india. (1 O) Consequentiy, the writ petition is dismissed. i so! l‘ MW“ \ \\ i Yrashan‘ svi‘ge ‘0““ar