ORDER
S.C. Mohapatra, J.
1. Plaintiffs are the petitioners in this civil revision arising out of a confirming decision rejecting the application for restoration of the suit dismissed for default.
2. Plaintiff 2 is the husband of plaintiff 1. Case of the plaintiffs is that plaintiff 2 was looking after the suit which was posted to 1-2-1982. A few days prior to the date fixed for hearing his left leg had to be plastered on account of fracture and the plaster was removed only on 30-1-1982. As he had severe pain after removal of the plaster, he could not attend the Court in time on 1-2-1982, though reached late at about 1 p.m. by which time the suit had already been dismissed.
Case of the defendants challenging restoration is that plaintiff 2 was hale and hearty and with evil intention of prolongation of the litigation he did not take any step on the date fixed.
3. Petitioners examined P.W. 1, a doctor, and the plaintiff 2 as P. W. 2. Endorsement made in a prescription issued in name of Bhikari Misra was also proved as Ext. 1. Defendants did not examine any witness nor did they prove any document in support of their case. Trial Court dismissed the application for restoration as P. W. 1 could not identify the petitioner 2 and on the finding that the petitioner 2 could not explain why he could not come to Court at 11 a.m. when he came at about 1 p.m. which proves his negligence.
4. In appeal by the plaintiffs, a petition for additional evidence was filed and another doctor was examined. The register of the hospital in radiology was proved as Ext. 2 and the entry No. 4870 dt. 30-1-1982 was proved at Ext. 2 to prove that Bhikari Misra was the patient in the X-ray Department.
Another doctor was examined to prove the entry.
5. Exts. 1 and 2 coupled with the evidence of P. Ws. 1 and 3 leave no room for doubt that one Bhikari Misra sustained fracture which was plastered to be removed on 30-1-1982. Petitioner 2 is Bhikari Misra. No evidence has been adduced that petitioner 2 procured the same from another Bhikari Misra to prove his case. There is also no evidence that there is any other Bhikari Misra to whom the entries relate. Therefore, merely because there is no identification mark given in Ext. 1 or the Ext. 2(a), it cannot be reasonably inferred that the same do not relate to the petitioner 2. In the absence of any other material, it would be reasonable to accept the evidence of P. W. 2 when he asserted on oath that the same related to him. This is a glaring and manifest material irregularity in exercise of jurisdiction.
5A. Mr. A. Mukherjee, the learned counsel for the opposite parties, relied upon a decision of the Supreme Court reported in AIR 1973 SC 76, Managing Director (MIG), Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, wherein the scope of interference in revision has been well-enumerated. In that case there is no finding that the finding of fact arrived at by the appellate court is not reasonable. Appreciation of evidence and coming to a finding whether right or wrong is different than coming to unreasonable finding on the facts available in the circumstances of a case. Therefore, while being conscious of the limited scope of civil revision, 1 am of the view that a finding of fact without taking into consideration the circumstances from which a reasonable man would come to the conclusion otherwise would be material irregularity in exercise of jurisdiction liable to be interfered with in civil revision.
6. On perusal of the materials on record, myself, I am satisfied that Bhikari Misra, as stated by the doctor and as reflected in Ext. 1, is plaintiff 2 who had fracture of leg.
7. Trial court observed that plaintiff 2 having come to Court at 1 p.m., could have also come in the first hour. Accordingly, there would be no sufficient cause for his absence
when the suit was called. This would be the inference in case of a normal man. A man with fractured leg whose plaster had recently been removed stands on a different footing. Normal view is to be taken in these matters and a pedantic approach should have been avoided. A man with fractured leg, the plaster of which was removed only two days before, had the sincerity to come to Court on the date fixed though late and explained the circumstances. On the face of it the sincerity in plaintiff 2 was not lacking. I am satisfied that petitioner 2 remained absent when the case was called for sufficient cause. Therefore, disagreeing with the findings of both [he courts below, I direct restoration of the suit to file.
8. In the result, the civil revision is allowed. There shall be no order as to costs. Both parties are directed to appear before the trial court on 24-11-1986 on which date the trial court shall fix a date for further proceeding with the suit in accordance with law.