Shri Govind Vashist vs Shri Tej Pal
2006 Latest Caselaw 1553 Del

JUDGMENT

J.P. Singh, J.

1. This civil revision petition under Section 115 of the Code of Civil Procedure is directed against the order dated 20.5.2005 passed in a first civil appeal, by Additional District Judge, Delhi. The said first appeal was against order dated 29.1.2004 passed by the Civil Judge, Delhi, dismissing an application moved by the defendant (respondent herein) under Order xxxvII Rule 4 CPC, for setting aside a decree dated 4.7.2003.

2. I have heard Mr. K.N. Mishra, Advocate learned Counsel for the petitioner and Mr. Alok Kumar,Advocate learned Counsel for the respondent and have gone through the record.

3. Briefly the facts are that the petitioner ? plaintiff (hereinafter referred to as plaintiff) filed a suit for recovery of Rs. 1,54,450/- under Order xxxvII of the CPC, on the ground that plaintiff was the owner and landlord of a shop situated at Hari Nagar, New Delhi. The defendant, his brother and mother were said to be the joint tenants under the plaintiff. The rate of rent was earlier Rs. 170/- per month, it was increased to Rs. 187/- per month under the provisions of the Delhi Rent Control Act. It is pleaded that the tenancy was terminated. Later on a compromise/an agreement was entered into on 28.4.2003. As per the said compromise/agreement the plaintiff agreed to pay a sum of Rs. 1,50,000/-, which was demanded by the defendant, in lieu of vacating the premises. It is stated that the premises were to be vacated on 7.5.2003. It is pleaded that the defendant had demanded the said amount for the daughter of his brother, who was a co-tenant. In view of the said assurance Rs. 1,50,000/- was paid to the defendant and he executed a receipt. He also signed a promissory note dated 28.4.2003 and assured that in case he failed to vacate the premises before 7.5.2003, the plaintiff was free to recover the said amount with interest, through the court of law.

4. It is alleged that a fraud was played on the plaintiff and despite the clear terms and conditions of the agreement dated 28.4.2003, the defendant neither vacated the shop nor refunded the money along with interest despite sending a notice of demand. On these pleadings the suit for recovery of Rs. 1,54,450/- was filed under Order xxxvII CPC.

5. Vide order dated 4.7.2003 the learned Civil Judge decreed the suit of the plaintiff with cost and interest, on the ground that the defendant was served with the summons of judgment on 11.6.2003, but he did not apply for leave to defend within the prescribed period of 10 days, so the plaintiff was entitled to a decree for the suit amount on the basis of the above referred compromise/agreement and the consequential promissory note.

6. The defendant had filed an application under Order xxxvII Rule 3 dated 2.6.2003 stating that the defendant had been served with the summons for appearance on 30.5.2003 and he accordingly put in appearance within the stipulated period. In second para of the application, it is mentioned that the plaintiff as required under Order xxxvII failed to supply the copies of the alleged compromise deed and the promissory note, therefore the suit could not be tried under Order xxxvII and the defendant filed his address as required under the law.

7. The plaintiff moved application dated 9.6.2003 under Order xxxvII Rule 3 (4) CPC for issuance of summons for judgment. Accordingly, the summons for judgment were issued. Since the defendant did not file application for leave to defend, the suit was decreed on 4.7.2003.

8. The defendant then filed an application under Order xxxvII Rule 4 CPC for setting aside the said decree and for stay of the execution on the ground that the plaintiff had obtained the decree by manipulation and by playing fraud on the court. It was averred in the application that the decree was passed on the ground that the defendant did not file application for leave to defend within the prescribed period of 10 days from the date of receipt of summoned for judgment. It was mentioned that after receipt of notice of suit for appearance the defendant had entered his appearance on 3.6.2003 and had brought to the notice of the court that material documents (supra) on which the suit was based were not supplied to the defendant along with the notice. It was pleaded that the court has not considered this important fact while passing the decree and the defendant came to know only from the neighbours that a money decree had been passed against him. He then got the file inspected on 7.7.2003 and came to know that the decree was passed on the basis of service report, where as at no point of time the notice containing the summons of judgment was ever received by the defendant. However, the defendant did receive registered envelope which contained only a copy of the plaint and copy of the affidavit, copy of the address form and copy of list of documents, but it did not contain the summons for judgment. It is further pleaded that since the defendant had already mentioned in his application while putting in appearance that copies of documents were not given, therefore, he considered the sending of the documents by registered AD post by the plaintiff as compliance of his demand regarding supply of documents vide his application filed for recording his appearance. It is further submitted that the report on the ordinary process was that defendant was not available and a person who did not disclose his name refused to take the summons. It is submitted that this was no service and, therefore, the decree was liable to be set aside because the plaintiff had manipulated and played a fraud on the court.

9. It was denied that the defendant ever executed any such compromise/agreement or promissory note. Further, it was alleged that two eviction proceedings were already pending. The first eviction petition was dismissed and the second eviction proceedings ended in a compromise vide which the rate of rent was enhanced by Rs. 40/- per month, but after death of the father of plaintiff, no one came to collect the rent. The notice sent by the plaintiff was duly replied. It is pleaded that the parties were in litigation, so there was no occasion for compromise and the plaintiff had forged and fabricated the said documents. These were said to be the special circumstances for setting aside the decree. The application was supported with an affidavit. The application was opposed by raising preliminary objections that no sufficient ground had been given for setting aside the decree; that the defendant intentionally did not appear and the only motive of the defendant was to delay the matter. It was stated that the summons for judgment were sent and served on 11.6.2003 and the compromise/agreement was reaffirmed. Vide order dated 29.1.2004 the leaned Civil Judge after examining the contentions of both the parties, referred to the order dated 4.7.2003 (granting decree) passed by his learned predecessor, (who happened to be an Additional District Judge, because only later on the pecuniary jurisdiction of the civil judges was enhanced and the files were transferred from the courts of Additional District Judges to the courts of Civil Judges). The learned civil judge reiterated the observations of his learned predecessor (ADJ) that the service was effected but application for leave to defend was not filed within 10 days. I may mention here that in the matters under Order xxxvII CPC when the notice for the suit is sent the next date is normally not mentioned in the notice because the stipulated time for putting in appearance is 10 days and the actual date is only internal office noting for keeping track of the file. The said date is not for appearance of the defendant.

10. The learned Civil Judge however did not believe in the reasons given by the defendant and opined that the defendant had not alleged any thing against the court staff to support his allegation of fraud and in the result dismissed the application for setting aside the decree.

11. Aggrieved the defendant filed a civil revision in the High Court, which was taken up along with several other revision petitions and all these petitions were disposed of by the judgment dated 22.3.2004 passed by the High Court. The defendant's petition was at No. 9 in the said batch. The High Court of Delhi after examining the provisions of Order xxxvII CPC; the provisions of Section 115 CPC and after referring to the several judgments finally held as under:

9. If an order declining leave to defend a summary suit thereby making a judgment inevitable can be attacked in a Revision and also in an Appeal, it would lead to the anomalous situation where a summary suit becomes more tedious and time consuming than an ordinary action for recovery of money. I would assiduously endeavor to eradicate a regime allowing multitudinous avenues of redressal. In the wake o the amendments effected to Section 115 of the CPC a Revision can no longer be preferred on the ground that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury. In preferring the conclusion that these Revisions are not maintainable, the Plaintiff/Defendants have not been adversely placed. The judgment can be assailed in an appeal, the only difference being the necessity to pay ad valorem court fees. This scarcely warrants any thought keeping in perspective that the alternative would inexorably lead to a multiplicity and plenitude of reliefs.

10. Applying the dicta of the Hon'ble Supreme Court in Khimji's case, I have no hesitation in holding that a Revision is not maintainable against the refusal to grant Leave to Defend a summary suit. After the judgment is passed the Defendant may assail the decision by way of an appeal. In the event that conditional leave has been allowed to the Defendant he must abide it and perform the obligations cast upon him or face the inevitability of a judgment being pronounced against him because of non-compliance of the conditions. It would be incongruous if he were to be placed than the Defendant who has been denied leave to defend altogether.

11. The Revisions are dismissed. However, the interim Orders shall continue to operate for thirty days from today. Parties shall bear their respective costs.

Sd/-

March 22, 2004 Vikramajit Sen, J.

12. After this judgment the defendant as opined by the High Court and availing of the stay/time granted by the High Court filed an appeal before the District Judge, Delhi which came up for hearing before Additional District Judge, Delhi.

13. The learned Additional District Judge referred to the pleadings in the suit; the alleged compromise/agreement to vacate the premises after taking Rs. 1,50,000/-; dismissal of the application under Order xxxvII Rule 4 CPC for setting aside the decree; the civil revision filed before the High Court; the opinion of the High Court as referred to above and after hearing the parties, condoned the delay in filing the appeal in view of the filing of civil revision by the defendant in the High Court.

14. On merits of the appeal the first appellate court referred to the provisions of the Order xxxvII Rule 3 (Sub Rule4) and opined that bare perusal of the rule shows that while applying for summons for judgment, the plaintiff was required to serve upon the defendant summons for judgment in form No.4 (a) as given in Appendix-B (CPC) supported by an affidavit verifying : (i) the cause of action; (ii) the amount claimed; (iii) stating that in his belief, there is no defense to the suit. But no such averments were made either in the application or in the affidavit. In the application it was simply mentioned that there was a prima facie case against the defendant. The first appellate court opined that this does not meet the requirements of law. The first appellate court then observed that it was the 4th round of litigation between the second generation of the original litigants and opined that there was no occasion for defendant not to apply for leave to defend had the summons been properly served. It was observed that there was a total denial of the documents being relied upon by the plaintiff and specially noted that any such contract of paying premium for vacating the premises was in violation of Section 5(3) of the Delhi Rent Control Act, 1958 and rather any such violation was a criminal offence inviting imprisonment and the said unlawful contract could not be implemented as the agreement was opposed to public policy and also referred to other provisions of Delhi Rent Control Act in support of the reasoning. The first appellate court finally held that the defendant had made out a sufficient ground for setting aside the decree and accordingly allowed the appeal. 10 days time was granted to defendant to move appropriate application for leave to defend the suit, before the trial court. The trial court was directed to decide the application in accordance with law.

15. Learned Counsel for the petitioner has contended that the defendant was duly served with the summons for judgment and that the summons were in conformity with law. There was no special circumstance for setting aside the decree. He reiterated that the compromise/agreement and the promissory note was executed by the defendant and has then argued that the civil revision filed by the defendant in the High Court was wrongly taken up by the High Court with other petitions and, therefore, the directions given by the High Court should not apply to the defendant and that the learned Additional District Judge could not have entertained the appeal because no appeal lies against the orders passed under Order xxxvII (4).

16. As against this learned Counsel for the respondent-defendant has submitted that it was not an appeal against the order passed under Order xxxvII CPC as such but was an appeal against the money decree and more so, because the High Court had allowed the defendant to file an appeal and that judgment of the High Court was not challenged by the plaintiff and has lastly emphasized that the alleged agreement, if any, was against public policy, against law and is void ab-initio, and could not be enforced even if defendant had remained ex parte.

17. Both the learned Counsel have cited the judgment titled Rajni Kumari v. Suresh Kumar Malhotra which has been referred to by the first appellate court in its judgment and, in my view, has been appropriately applied in the facts and circumstances of this case. Considering all the facts and circumstances of the case, in my view also there was legal flaw in the application moved for summons for judgment. The enforceability of the prima facie void agreement was in question. There were, therefore, special circumstances for setting aside the decree.

18. I, therefore, find force in the arguments of the learned Counsel for the respondent-defendant and am of the opinion that the first appellate court judge has dealt with all the aspects of the matter thoroughly and has passed a well reasoned judgment, therefore, no interference is called for under Section 115 of the Code of Civil Procedure. In the result the petition is dismissed. Nothing said herein will tantamount to expression of opinion on the merits of the case.

19. The trial court will make efforts to disposed of the matter within six months.