Delhi High Court
M/S Lakhani Rubber Works vs M/S. Ritzy Polymers on 1 February, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. (Main) No.901 of 2009 & C.M. Appl. No.12189 of 2009
% 01.02.2010
M/S. LAKHANI RUBBER WORKS ......Petitioner
Through: Mr. Abhinav Bajaj, Advocate.
Versus
M/S. RITZY POLYMERS ......Respondent
Through: Mr. Sanjeev Sharma, Advocate.
Date of Reserve: 19th January, 2010
Date of Order: 1st February, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. By this petition, the petitioner has assailed order dated 28 th November, 2008
passed by the trial court whereby the trial court dismissed the application of the petitioner
for leave to defend in default and decreed the suit of the plaintiff along with cost and
pendentilite interest @ 12 per cent per annum.
2. It is submitted by counsel for the petitioner that even if the petitioner had not
appeared on the date fixed for arguments, leave to defend could not have been dismissed
by the trial court in default and the trial court was obliged to consider the defence raised
by the petitioner and pass a speaking order whether leave to defend was permissible on
merits or not and the suit of the plaintiff could not have been decreed without going into
the merits of the case of the plaintiff.
3. Learned counsel for the respondent on the other hand supported the trial court
order.
4. Under Order 37 Rule 3 sub-Rule 5 CPC, the defendant is obliged to disclose to the
court by way of an affidavit such facts as may be deemed to be sufficient to entitle him
leave to defend and if the court considers that the defendant had disclosed such facts
which shows that the defendant had substantial defence to raise then the court has to grant
him leave to defend either unconditionally or upon such terms as may appear to the court
just.
5. Once defendant files an application for leave to defend disclosing such facts, even
if on the date of arguments on application for leave to defend the defendant does not
appear or the court is inclined not to give adjournment, the court has to consider the
application for leave to defend made by the defendant on merits and to pass an order on
the grounds raised by the defendant seeking leave to defend and state whether the facts as
disclosed entitle the plaintiff to leave to defend or not. The first proviso under sub-Rule 5
makes it clear that leave to defend cannot be refused unless the court was satisfied that the
facts disclosed by the defendant do not raise a substantial defence or defence put up by
the defendant was frivolous or malicious.
6. Perusal of the trial court order shows that the trial court did not advert to any of
the facts, either stated by the plaintiff in the plaint or by the defendant in leave to defend
and just decreed the suit dismissing the application for leave to defend in default. Even
where a suit is decreed ex-parte, the trial court is supposed to satisfy itself on the basis of
facts as disclosed by the plaintiff and the documents as placed by the plaintiff on record
whether the suit of the plaintiff was worth decreeing or not. The trial court has to look
into the admissibility of the documents, consider whether the documents filed were
reliable or not and apply mind and then pass even an ex-parte decree.
7. The trial court here seems to have abdicated its functions altogether and did not
exercise jurisdiction vested in it of considering the application for leave to defend on
merits or the suit on merits. The order of the trial court is liable to be set aside being
perverse and without jurisdiction and is hereby set aside. The trial court shall consider
the application for leave to defend on merits and then pass an order. The parties shall
appear before the trial court on 10th February, 2010.
8. The petition is allowed.
SHIV NARAYAN DHINGRA J.
FEBRUARY 01, 2010
'AA'
