Babu Lal Yadav vs M/S R.S. Yadav & Co. & Anr.
2010 Latest Caselaw 1002 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                          + C.R.P. 130/2009

                                           Reserved on : 09.02.2010
                                           Pronounced on: 22.02.2010

IN THE MATTER OF :
BABU LAL YADAV                                 ..... Petitioner
                               Through: Mr. Ram Singh Soni, Advocate

                     versus


M/S R.S. YADAV & CO. & ANR.                            ..... Respondents
                          Through: Nemo


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may          Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be                 Yes
        reported in the Digest?


HIMA KOHLI, J.

1. In the present revision petition, challenge has been laid by the

petitioner to an order dated 10.09.2009 passed by the learned ADJ, allowing

the application for condonation of delay filed by the respondents (defendants

in the court below) in a summary suit for recovery filed by the petitioner

(plaintiff in the court below) under the provisions of Order XXXVII CPC,

subject to payment of costs of Rs.1,000/-. Before proceeding to deal with

the grounds taken by the petitioner to assail the impugned order, it would

be necessary to briefly advert to the sequence of events resulting in passing

of the said order.

2. On 19.05.2009, the petitioner (plaintiff in the court below)

instituted a summary suit under Order XXXVII CPC praying inter alia for a

decree of Rs.5,40,000/- with interest against the respondents (defendants in

the court below). The aforesaid suit was registered by the learned ADJ on

20.05.2009 and summons were directed to be issued in the prescribed

format to the defendants on filing of process fee and registered cover,

returnable on 31.07.2009. A perusal of the trial court record shows that

while the respondents/defendants remained unserved by ordinary process,

service was duly effected on them by Registered Post. A perusal of the

Registered AD covers placed on the record shows that the same were

dispatched from the post office at Patiala House, New Delhi on 25.05.2009,

but the date of receipt of the summons is not indicated on the AD covers.

3. On 31.07.2009, counsels for the parties were present in Court.

Counsel entered appearance on behalf of the respondents/defendants and

prayed for some time to file the written statement. The order dated

31.07.2009 is reproduced hereinbelow:-

"Suit No.756/09 Present: Counsels for the parties Defendants have been duly served in this case. Sh. Raj Kumar Yadav has put in his appearance on behalf of defendants and prays for some time to file the WS. Let the same be filed by next date of hearing i.e. 20.08.09.

(Ina Malhotra) Add. District Judge South-II PHC: New Delhi 31.07.09"

The record reflects that a Vakalatnama dated 31.07.2009, on

behalf of the respondents/defendants was duly filed on the same date.

4. On 31.07.2009, counsel for the petitioner/plaintiff filed an

application under Order XXXVII Rule 2(3) CPC, stating inter alia that as the

respondents/defendants had not entered appearance within the stipulated

period of ten days from the date of service of the summons upon them, the

petitioner/plaintiff was entitled to a decree for the sum, mentioned in the

plaint. He submitted that as the suit had been filed under the provisions of

Order XXXVII CPC, counsel for the respondents/defendants had wrongly

taken time to file the written statement. Vide order dated 4.8.2009, notice

of the aforesaid application was issued to the respondents/defendants

through counsel, returnable on the date fixed, i.e., 20.08.2009. On

20.08.2009, counsels for the parties were present. As notice of the

aforesaid application filed by the petitioner/plaintiff could not be served upon

the defendants' counsel, the same was accepted by him in Court and the

matter was adjourned to 04.09.2009 for arguments.

5. On 04.09.2009, the respondents/defendants submitted their

reply to the application filed by the petitioner/plaintiff under Order XXXVII

Rule 2(3) CPC. They also filed an application for condonation of delay in

entering appearance in the suit on the same date. The learned ADJ passed

the following order :-

"Suit No.756/09

Present: Counsels for the parties

Reply has been filed by the defendant to the plaintiff's application under Order 37 Rule 2(3) CPC.

An application has also been filed for condoning the delay by the defendant. Further till date, no proper appearance has been filed in terms of the requirement of Order 37 CPC, therefore the same is not maintainable.

Adjourned to 10.09.09 for further proceedings.

(Ina Malhotra) Add. District Judge South-II PHC: New Delhi 04.9.09"

6. On 10.09.2009, the learned ADJ heard the arguments addressed

by the parties and allowed the application of the respondents/defendants

seeking condonation of delay, subject to payment of costs of Rs.1,000/- and

adjourned the case for 16.09.2009 for payment of costs. Aggrieved by the

aforesaid order, the plaintiff/petitioner has filed the present petition.

7. Learned counsel for the petitioner/plaintiff submitted that the

petitioner has a three-fold grievance against the impugned order. Firstly,

the application filed by the respondents/defendants was not filed under the

provision of Sub-rule(7) of Rule 3 of Order XXXVII CPC and hence, the same

ought not to have been taken into consideration. Secondly, the said

application was highly belated inasmuch as the respondents/defendants

were served with the summons in the suit in the prescribed format in the

end of May, 2009, but they did not file the memo of appearance within 10

days, or even thereafter. Instead, their counsel filed his power of attorney

on 31.07.2009, which was not accompanied by any application for

condonation of delay, under Order XXXVII Rule 3(7) CPC and even

thereafter, when the application for condonation of delay came to be filed by

the respondents/defendants on 04.09.2009, no explanation was offered for

the delay in filing the same, for the period between 31.07.2009 to

04.09.2009. It was lastly contended that the order dated 10.09.2009 was in

contradiction of the order dated 04.09.2009 for the reason that vide order

dated 04.09.2009, the learned ADJ had observed that no proper appearance

had been filed by the respondents/defendants in terms of the requirement of

Order XXXVII CPC and hence, the application filed for condonation of delay

was not maintainable and despite the said observation, on the very next

date of hearing, i.e., on 10.09.2009, she proceeded to allow the said

application subject to costs.

8. It is relevant to note that despite service in the present petition,

none entered appearance on behalf of the respondents. As a result, vide

order dated 09.02.2010, they were directed to be proceeded against

exparte.

9. I have heard learned counsel for the petitioner and carefully

gone through the trial court record summoned in the case.

10. Order XXXVII of the CPC is a complete code in itself. The said

provision not only lays down the manner in which a summary suit is required

to be instituted, but also prescribes the format for issuing summons to the

defendants and fixes a time period for entering appearance after the

summons are served. For the purpose of deciding the case in hand,

reference to Order XXXVII Rule 2(3) is relevant. The same reads as below:

"2. Institution of summary suits- (1) xxx

(2) xxx

(3) The defendant shall not defend the suit referred to in sub-rule(1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith."

11. The procedure for the appearance of the defendant in such a

suit is dealt with by Rule 3 sub-rule (1), which states as follows:

"3 Procedure for the appearance of defendant- .(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him."

12. The aforesaid sub-rule requires the defendant to take the

following two steps within ten days after notice is served on him:

(a) He must enter an appearance either in person or by pleader and (b) he

must file in Court, an address for service of notices on him. Both the steps

would be required to be undertaken concurrently, within the prescribed

period of ten days. The third step required to be taken by the defendant is

prescribed under sub-rule (3) of Rule 3, which states as follows:

"3(3) On the day of entering appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be."

13. In the present case, the defendant filed his power of attorney in

Court on 31.7.2009. So the first requirement was fulfilled, but not within

the time prescribed. The other two procedural formalities were not complied

with by the respondents as laid down in the Statute. It is a different matter

that as the counsel for the respondents entered appearance in the presence

of the counsel for the petitioner on 31.7.2009, the petitioner had notice of

his appearance. Counsel for the petitioner argued that the respondents

cannot be regarded as having entered appearance, as they failed to file a

memo of appearance and further, that the vakalatnama of the respondents

had not only been filed highly belatedly, it was not accompanied by an

application as prescribed under the provisions of sub-rule(7) of Rule 3 of

Order XXXVII of the CPC.

14. It is trite that condonation of delay is a matter of discretion of

the Court. Section 5 of the Limitation Act, 1963 does not prescribe that such

a discretion can be exercised by the Court only if the delay is for a certain

period of time, rather the length of delay is hardly relevant. What is to be

considered is the explanation offered for the delay. Thus each case has to

be examined in its own facts and as long as there is a satisfactory

explanation offered for the delay, the Court is well within its powers to

accept the explanation and condone the delay. Merely because the title of

the application does not reflect the correct position of law, can also not be a

ground to oust a party. What has to be examined is the explanation offered

in the application and the relief sought. In other words, substantial justice

cannot be permitted to be sacrificed at the alter of technicalities. In the

case of N.Balakrishnan Vs. M.Krishnamurthy reported as (1998) 7 SCC

123, the Supreme Court relying on its earlier decisions in the case of

Shakuntala Devi Jain Vs. Kuntal Kumari reported as (1969) 1 SCR 1006

and State of West Bengal Vs.Administrator, Howrah Municipality reported as

(1972) 1 SCC 366, held that the words" sufficient cause" as mentioned in

Section 5 of the Limitation Act, 1963 ought to receive a liberal

construction so as to advance substantial justice for `court knows that

refusal to condone delay would result in foreclosing a suitor from putting

forth his cause'. It was further observed that "it must be remembered that

in every case of delay, there can be some lapse on the part of the litigant

concerned. That alone is not enough to turn down his plea and to shut the

door against him. If the explanation does not smack of mala fides or it is

not put forth as part of dilatory strategy, the Court must show utmost

consideration to the suitor". It was also observed as under:

9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."(emphasis added)

15. In the case of HDFC Vs Anil Laul reported as 85(2000) DLT 343,

while condoning the delay on behalf of the defendant entering appearance, a

Single Judge of this Court observed as below:

"Para 4: It is correct that under Order 37 of the Code, on receipt of summons in Form IV Appendix B the defendant is required to enter appearance within 10 days from the date of service of summons upon the defendant. But this Court can also not ignore the fact that when summons are received by a layman who has hardly appeared in Court, he can be misled by the date which is mentioned on the summons. A perusal of the summons shows that the party was informed that the matter will be taken up by the Court on 20th July, 1999. No mala fides have been imputed to the defendant nor any reason has been shown as to why the defendant who wants to contest the suit would not enter appearance in case he was aware that on not filing appearance within 10 days decree will be passed against him. At best it can be a case of casual approach of the defendant to the whole matter. However, it cannot be said that the mistake on the part of the defendant in not entering appearance within 10 days was not bona fide. It can also not be said that by writing the date of 20th July, 1999 on the summons when the defendants were informed that the matter will be listed before the Joint Registrar, the defendant was not misled. In my view, therefore, there is sufficient cause for not entering appearance within time and a good cause has been shown for the delay in entering appearance. I accordingly allow this application subject to payment of Rs.1,000/- as costs and condone the delay in entering appearance by the defendant. No further orders are required to be passed on this application and the same stands disposed of. " (emphasis added)

16. In the case of Hector M.Mehta Vs. CRB Capital Markets Ltd.

reported as 98(2002) DLT 127, a Single Judge of this Court held as

follows:

"Para 4: As per the provisions of Order XXXII Rule 3 Sub-rule (7) CPC, the Court may excuse the delay in entering appearance for sufficient cause shown by the defendant. The words "sufficient cause" though have not been defined but have been interpreted by the Supreme Court in a catena of judgments in

reference to Section 5 of the Limitation Act. It is held in a number of judicial pronouncements that the words "sufficient cause" should be liberally construed so as to advance substantial justice. The Supreme Court in (1998) 7 SCC 123, N. Balakrishnan v. M. Krishnamurthy, held that in the absence of anything showing malafides or deliberate delay as a dilatory tactic, Court should normally condone the delay. It has also been held that length of delay is not material, acceptability of the explanation is the only criterion as sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is found satisfactory. It is held that there is no presumption that delay in approaching the Court is always deliberate. "(emphasis added)

17. In the present case, no mala fides have been imputed to the

respondents, nor has any reason been shown as to why the respondents

would not want to contest the suit, in case they were aware of the fact that

in the event of their failure to appear within ten days, a decree would be

passed against them. It can also not be said that the mistake on the part of

the respondents for not entering appearance within ten days, was not bona

fide. The explanation offered by the respondents in their application was

that they were unaware of the technicalities involved in a summary suit and

contacted his counsel only two days prior to the date fixed before the Court.

The counsel filed his vakalatnama on the said date. The learned Additional

District Judge has accepted the explanation offered by the respondents as

`sufficient'. The trial court having so exercised its discretion in favour of the

respondents, this court is not inclined to disturb such a finding as the

exercise of discretion by the trial court has not been assailed on the ground

that it is wholly untenable or so adverse or arbitrary that it cannot stand.

Rather, a perusal of the impugned order shows that the trial court has duly

taken into consideration the fact that no formal application for appearance

was filed by the respondents, though the application for seeking condonation

of delay was filed and thus, the delay was condoned, subject to payment of

costs of Rs.1,000/-.

18. The contention of the counsel for the petitioner that there is a

contradiction in the earlier order dated 4.9.2009 and the order dated

10.9.2009, is also untenable. On 4.9.2009, the Court did notice that the

formality of entering appearance in terms of the requirement of Order

XXXVII was not complied with by the respondents, but on the said date, the

application filed by the respondent for condonation of delay was not

considered or disposed of. Rather, the matter was adjourned to 10.9.2009,

on which date, after hearing the parties, the impugned order came to be

passed, whereby the delay was condoned and the respondents were mulcted

in costs.

19. Assuming that there is some ambiguity in the meaning of the

words "enters an appearance", as mentioned in sub-rule(3) of Rule 2, this

Court would prefer to be guided by the interpretation given to the said

provision in the case of Arjan Lal Verma Vs. Smt.Rawel Kaur reported as

AIR 1982 DELHI 148, wherein a Single Judge of this Court observed as

below:

"5. I do not agree with this argument. Sub-rule (3) of R.2, the relevant part of which I have already quoted, prohibits a defendant from defending the suit 'unless he enters an appearance'. Sub-rules (1) and (3) of R.3 indicate that entering appearance is one thing, filing an address for service another and giving notice of appearance to the plaintiff or his counsel a third. Sub- rule (3) of R.2 has nothing to say as to the effect of non-compliance with the second and third

requirements. In accordance with the principle of harmonious construction, the words `enters an appearance' in that sub-rule must be read in the same sense as is derived from sub-rules (1) and (3) of R.3. Those sub-rules lead irresistibly to the conclusion that entering an appearance does not of itself involve or import the filing of an address for service in court or serving notice of such appearance on the plaintiff or his counsel. For, otherwise, those two requirements would not have been stated additionally and separately.

And, even supposing there is some ambiguity in the meaning of the words 'enters an appearance' in sub-rule (3) of R.2 (which I do not concede), I think, they must be given a narrow and restricted meaning considering that the right of the defendant to defend the suit is at stake...." (emphasis added)

20. For the aforesaid reasons, this Court does not find that the

learned ADJ has acted in the exercise of its jurisdiction illegally or with

material irregularity. Nor is there any illegality, arbitrariness or

perversity in the impugned order which deserves interference. The

impugned order is confirmed. The petition is dismissed, with no orders as to

costs.

(HIMA KOHLI) JUDGE FEBRUARY 22, 2010 rkb/mk