Delhi High Court
Kalicharan vs Suresh Chanchal & Ors. on 22 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: March 16, 2010
Date of Order: March 22, 2010
+ CM(M) 1192/2009
% 22.03.2010
Om Kumar ...Petitioner
Through: Mr. M.K. Gautam, Advocate
Versus
Suresh Chanchal & Ors. ...Respondents
Through: Mr. V.K. Upadhyay, Advocate for R-1 to R-3
+ CM(M) 1195/2009
%
Om Kumar ...Petitioner
Through: Mr. M.K. Gautam, Advocate
Versus
Suresh Chanchal & Ors. ...Respondents
Through: Mr. V.K. Upadhyay, Advocate for R-1 to R-3
+ CM(M) 1193/2009
%
Suman Rawat ...Petitioner
Through: Mr. M.K. Gautam, Advocate
Versus
Suresh Chanchal & Ors. ...Respondents
Through: Mr. V.K. Upadhyay, Advocate for R-1 to R-3
+ CM(M) 1196/2009
%
Kalicharan ...Petitioner
Through: Mr. M.K. Gautam, Advocate
Versus
Suresh Chanchal & Ors. ...Respondents
Through: Mr. V.K. Upadhyay, Advocate for R-1 to R-3
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
CM(M) 1192,1193,1195 & 1196 of 2009 Page 1 Of 4
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By these petitions, the petitioners have assailed an order dated 5th
August, 2009 whereby the learned trial court allowed an application of the
respondents for leave to defend.
2. The petitioners filed a suit for recovery of due amount with 24%
interest and damages from the defendants (petitioners herein). In the suit, it
was stated that the decree be passed against defendants' servants,
employees, legal heirs of the due amount as claimed and damages of
Rs.4,000/- be granted against defendants' servants and employees. The suit
was filed against three defendants who were stated to be running a Lucky
Draw in the name of "Adarsh Lucky Scheme and M/s Adarsh Thrift & Credit
Society.
3. In the application for leave to defend, the defendants had taken the
stand that the suit was not maintainable as it was not based on a written
contract. No documents were filed and the membership of the lucky draw was
in the name of different persons while the suit was filed by different person.
Another defence taken was that the contract between the parties was in the
nature of a wagering contract which was a void contract in view of Section 35
of the Contract Act and, therefore, the contract was not enforceable.
4. The trial court while disposing of the application for leave to defend
observed that the agreement relied upon by the petitioners were in the name
CM(M) 1192,1193,1195 & 1196 of 2009 Page 2 Of 4
of Smt. Manju Devi and Mohit but they were not party to the suit and the suit
was filed by Mr. Om Kumar, who was the husband of Smt. Manju Devi and
father of Mohit. No authorization on their behalf was also placed on record.
He, therefore, observed that the sufficient triable issues have been raised.
5. It is submitted by counsel for the petitioner that the defendants in
leave to defend application has not raised the issue on the basis of which
leave to defend was granted by the trial court and the trial court went beyond
the pleadings taken by the defendants. The defendants in fact had raised no
defence and had not denied the liability.
6. It is correct that the defendants in his application for leave to defend
had not raised issues on the basis of which the trial court considered and
granted leave to defend, however, after going through the suit, it would
become apparent that the suit should not have been entertained as one
under Order 37 of Civil Procedure Code as in the suit apart from due amounts,
damages were claimed, which were not liquidated damages under the
contract and the damages were to be ascertained by the trial court. Such a
suit cannot be a suit under Order 37. One of the conditions for entertaining a
suit under Order 37 is that no relief should have been claimed by the plaintiff
which falls outside the purview of Order 37 CPC. The damages, not in the
nature of liquidated damages, do not fall within the ambit and scope of Order
37 CPC. It appears that summons of the suit under Order 37 CPC were
wrongly issued by the trial court and the suit should have been treated as an
ordinary suit in the very beginning.
7. The observations made by the trial court regarding suit having been
CM(M) 1192,1193,1195 & 1196 of 2009 Page 3 Of 4
filed by the father/ husband are born out from the record. If the court on the
basis of pleadings of the plaintiff comes to conclusion that there was a triable
issue which needs to be addressed by the court, the court can treat the suit
under Order 37 CPC to be one as an ordinary suit. I, therefore, find no force in
these petitions. The petitions are hereby dismissed with no orders as to costs.
March 22, 2010 SHIV NARAYAN DHINGRA J.
rd
CM(M) 1192,1193,1195 & 1196 of 2009 Page 4 Of 4
