P L D 1967 Dacca 776 (PLP)

MURSHED, C. J.‑This miscellaneous appeal raises a very simple point. Opposite‑parties instituted a suit against the res pondents and the suit was contested by defendants 10, 11, 12 and

13. Defendants Nos. 10 and 12 are the brothers of defendant No. 11 and defendant No. 13 is the mother. It appears that all the aforesaid defendants Nos. 10 to 13 filed a joint written statement in opposition to the plaint. At the instance of the defendants, the suit was fixed for peremptory hearing on 13‑12‑

61. It further appears that two days earlier, namely, on 11‑12‑61, a petition was filed on behalf of the defendants for an adjournment of the case on the ground that their witnesses were not available because the date was fixed during paddy cutting season. This application was, however, rejected by Court. On the 13th of December 1961, which was the date fixed for peremptory hearing of the suit a petition on behalf of petitioner No. 1, i.e., defendant No. 11, was filed for adjournment of the suit on the ground that he was attacked with diarrhoea and fever on the 12th of December 1961. A medical certificate to that effect was produced and the same was marked Exh. 1 in the miscellaneous case. The learned Subordinate Judge, who tried the suit, proceeded with it on the 13th of December 1961, and it was found that defendants were absent and no hazira was filed on their behalf. He examined one of the plaintiffs' witnesses and passed an ex parte decree against the defendants. Defendant No. 11, thereafter, filed an application under Order 9, rule 13, Civil Procedure Code, for setting aside the ex parte decree which was passed in the suit, namely, in Title Suit No. 31 of 1960. At the hearing of the said application three witnesses were examined on behalf of the petitioner, including the petitioner himself, and two were examined on behalf of the opposite‑parties (plaintiffs in the suit). The petitioner in his evidence stated that he was attacked with diarrhoea and the doctor who was examined on his behalf corroborated him and proved the certificate (Exh. 1) granted by him. Plaintiff‑opposite‑parties' case is a denial of the petitioner's case that the latter was unable to be present at the date of the hearing of the suit on the ground of his illness. One witness who was examined on behalf of the opposite‑parties stated that he had seen the petitioner on the particular date when he claimed to be ill. The learned Subordinate Judge, on an assessment of the evidence in the case, dismissed the application and hence this appeal. At the hearing of this appeal we have gone through the evidence in the case and we find that the evidence led on behalf of the petitioner is reasonable and probable and that even if the witness No. 2 for the opposite‑party, namely, Ranjit Kumar Dhar, is believed, it is not unnatural that a person should have an attack of diarrhoea be seen moving about by somebody else for sometime. On our own appraisal of the evidence led by the parties, we are convinced that the petitioner's application should be allowed because he has succeeded in showing reasonable and sufficient cause for his non‑appearance on the date fixed for peremptory hearing of the suit. We would like to observe that although there may be several defendants in a suit, it often happens that one of them prosecutes the suit and acts on behalf of all his co‑defendants. Having regard to what we have stated above, we allow this appeal and set aside the order of dismissal of the miscellaneous case, namely, Miscellaneous Case 4 of 1962, of the Court below, namely, the application made by the petitioner‑appellant to restore the suit to file under Order IX, rule 13, Civil Procedure Code. The ex parte decree obtained in the above‑mentioned suit is set aside and we direct that the suit be restored to file and be heard and disposed of as expeditiously as possible. In the light of the facts and circumstances of the case, we make no order as to costs of this appeal. We, however, direct that the suit be restored to file and heard on condition that the petitioner appellant pays the opposite‑parties (plaintiffs) a sum of Rs. 75 (Rupees Seventy‑five) only within two months of the arrival of this order and the records to the Court below. In default of such payment within the time mentioned above, the present appeal shall stand dismissed and the decree passed in the aforesaid suit will stand affirmed. It is further directed that a reasonable and sufficient margin of time be allowed in fixing the date of peremptory hearing of the suit. ABDULLA, J.‑I agree. K. B A. Appeal accepted.