Delhi High Court
General Copy House & Anr. vs Rajeev Jain on 20 April, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 331/2008
Date of Decision: 20th April, 2010
GENERAL COPY HOUSE & ANR. ..... Petitioners
Through: Mr. Prag Chawla, Advocate.
versus
RAJEEV JAIN ..... Respondent
Through: Mr. J.K. Sharma, Advocate
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Respondent filed a suit for recovery of Rs.13,30,000/- with
interest pendent lite and future interest under Order 37 Code
of Civil Procedure (hereinafter referred to as „CPC‟) on the
basis of Promissory Note and Receipt dated 24th September,
2001 executed by the Petitioner for repayment of loan of
Rs.10 lacs taken by him from the Respondent. He had also
agreed to pay interest @ 1.65 % per month on the said
amount.
2. Petitioner was duly served with summons for appearance on
8.11.2005 and he entered appearance on 10 th November,
2005. Thereafter summons for judgment were sent to be
served upon the Petitioners but they refused to accept the
same. Trial Court under such circumstances, issued summons
for judgment to be served upon the Petitioners by way of
publication. Summons for judgment were accordingly served
upon the Petitioners by publication as well as by affixation.
3. It seems that instead of proceeding with the passing of a
decree as prayed for, in the absence of any application for
leave to defend, the Trial Court inadvertently fixed the matter
for recording of ex-parte evidence for 20.07.2007. This
resulted into filing of an application by the Respondent to
rectify the mistake. The Trial Court on 20.7.2007 in the
presence of the Petitioners considered the said application and
reviewed its order dated 19.04.2007 finding irregularity in the
order, and decreed the suit of the Respondent as per the
provision of order 37 CPC. Thereafter, Petitioners filed an
application under Order 37 Rule 4 CPC for setting aside the
judgment and decree dated 20.07.2007, the said application
was dismissed by the Trial Court on 17.11.2007.
4. Impugned in this petition are the orders of the Trial Court
dated 20.07.2007 and 17.11.2007.
5. Mr. Prag Chawla, learned counsel for the Petitioners has
argued that since the Petitioners were present in the Court on
20.07.2007, the Court should have given him a hearing before
deciding the application of the Respondent reviewing its own
order dated 19.04.2007. The Trial Court declined the request
of the Petitioner to give him a hearing considering the fact
that the suit was under Order 37 CPC and Petitioners despite
service of summons for judgment by way of publication and
affixation failed to file an application for leave to defend the
suit within the period of limitation.
6. I find no irregularity or illegality in the order of the Trial
Court dated 20.07.2007 when it observed:-
"....... Heard on the application as
presence of the defendants is not material
as the suit was filed under Order 37 CPC
and the defendants despite service of
summons for judgment issued in Form
IVA, Appendix B CPC did not file leave
to defend application within the
stipulated period of 10 days."
7. While reviewing its order dated 19.04.2007, the Court did
observe that the defendant was proceeded ex-parte
inadvertently and the case was fixed for 20.7.2007 for
plaintiff‟s ex-parte evidence.
8. To my mind, the Trial Court, was right in reviewing its own
order dated 19.4.2007 to rectify the mistake which had
appeared in the said order and thereafter rightly proceeded to
pass a decree in favour of the Respondent as prayed for under
the provisions of Order 37 CPC.
9. It is a settled principle of law that Court is within its
jurisdiction to review its order if it finds some inadvertent
mistake having crept in its order. Therefore, the Court was
within its power and jurisdiction to review the order dated
19.04.2007 and the Court rightly exercised its power in
reviewing the same.
10. While dismissing the application of the Petitioners under
Order 37 Rule 4 CPC on 17.11.2007, the Court observed in
para 7, 8 and 9 as under:-
"7. For setting aside impugned
judgment and decree the defendants have
to show special circumstances besides
reasonable grounds to defend the suit
under Order 37 Rule 4 CPC. Perusal of
the summons for judgment sent to the
defendants and the report thereupon by
the process server reveals that defendants
avoided to take the same and the person
available at the address refused to accept
the same which was a sufficient service
in term of order 37 Rule 3 clause (2)
CPC.
8. In the present case as a
precautionary measure the defendants
were also deemed served by publication.
From the application under disposal it is
also crystal clear that defendants were
aware of the proceedings as on 12.7.2007
but did not file leave to defend
application. they also did not file leave
to defend application despite service of
summons in Form IVA, Appendix B,
under Order 37 CPC even on 20.7.2007
as by filing application under Section
151 CPC they sought time to engage
counsel which was not permissible under
the procedure U/o 37 CPC under which
the judgment was passed against the
defendants in term of order 37 R 3 CPC
as detailed in the impugned
judgment/order dated 20.7.2007. The
authority relied upon in the case of
Sharad Vs. Vishnu reported in AIR
1978 Bombay 187 is also of no help to
the applicants/defendants.
9. As already observed not only no
special reasons/grounds are pleaded in
the application under disposal for setting
aside the impugned judgment and decree
but also vague plea, with regard to
defence of the case, has been taken
therein which is not tenable in law as
also no specific averments/plea made in
defence on merits of the suit to challenge
the same."
11. Observations of the Trial Court while dismissing the
application clearly indicate that Court was not convinced with
the plea of the Petitioners that they were not served with the
summons for judgment and rightly so, as summons for
judgment were served upon the Petitioners by way of
publication as well as by affixation. Besides, the grounds of
defence raised in the application were rightly not considered
by the Court being untenable in law or on facts.
12. Hence, I find no merits in the petition, the same is accordingly
dismissed.
ARUNA SURESH, J.
APRIL 20, 2010
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