* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.700/2011 and C.M. No.11257/2011 (stay)
% 19th September, 2014
M/S. SHAMKEN MULTIFAB LTD. ......Petitioner
Through: Mr. Mohit Chadha, Advocate.
VERSUS
SATYAM PACKERS ...... Respondent
Through: None. CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 24.2.2011 by which the trial court has dismissed the application filed under Order XXXVII Rule 4 of Code of Civil Procedure, 1908 (CPC) by the petitioner/defendant.
2. The subject suit under Order XXXVII CPC was decreed by the judgment dated 18.11.2009 on account of the petitioner/defendant, allegedly having failed to file appearance. The case of the petitioner/defendant in the application under Order XXXVII Rule 4 CPC is/was that its counsel in the trial court Sh. Ajay Singh, Advocate had filed the appearance with the Reader of the CM(M) No.700 /2011 Page 1 of 3 court but the Reader of the court had not put the appearance on the court file. Sh. Ajay Singh, Advocate also filed such an affidavit dated 4.12.2009 before the trial court.
3. A reading of the appearance which is/was said to have filed on behalf of the petitioner/defendant shows that the same is accompanied by the speed post slip, and which speed post slip is dated 28.8.2009, and obviously therefore there cannot be any doubt at least with respect to sending of the copy of the appearance to the respondent/plaintiff in the present case by registered post. In fact, before the respondent/plaintiff was successful in obtaining the judgment and decree on 18.11.2009, the respondent/plaintiff should have stated to the trial court the aspect with respect to receipt of notice of the appearance by post, but, it appears that this aspect was possibly concealed from the trial court.
4. There is no reason for this Court to disbelieve an Advocate who has filed his own affidavit that he gave to the Reader of the court the appearance, and that the same was not put on the court record, and which has to be accepted more so because the appearance was accompanied by a postal slip dated 28.08.2009 which cannot be manipulated and which postal slip shows sending of the appearance to the respondent/plaintiff.
5. The respondent herein does not appear in this Court instead of service by publication.
CM(M) No.700 /2011 Page 2 of 3
6. In view of the above, this petition is allowed. Impugned judgment and decree dated 18.11.2009 is set aside. Respondent/plaintiff will now pursue the suit further, if it so wants, by filing an application for service of summons for judgment, and which if served, petitioner/defendant will file its leave to defend application in accordance with law. Parties are left to bear their own costs.
SEPTEMBER 19, 2014 VALMIKI J. MEHTA, J
Ne
CM(M) No.700 /2011 Page 3 of 3