Delhi High Court
Sh. Prabhat vs Sh. Dharmapal on 29 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.178/2011
% 29th March, 2011
SH. PRABHAT ...... Appellant
Through: Mr. Jetendra Singh, Advocate.
VERSUS
SH. DHARMAPAL ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. Counsel for the appellant states that though the present
Regular First Appeal seeks to challenge two orders, in reality it is only
the second order by which the application under Order 37 Rule 4 CPC
has been dismissed on 10.2.2011, which is actually and only under
challenge in the present appeal. Accordingly, the appeal is treated as
one challenging the order dated 10.2.2011.
2. The facts of the case are that the respondent/plaintiff filed
a suit under Order 37 CPC for recovery on the ground that the
appellant/defendant took a friendly loan of Rs.7,80,000/- on 18.6.2007
for which a written note was made on a stamp paper of Rs.50/-
undertaking to return the amount by 20.7.2007. It was stated in the
RFA No.178/2011 Page 1 of 3
plaint by the respondent/plaintiff that the appellant/defendant for part
repayment issued two cheques of Rs.1,60,000/- and Rs.40,000/- in
favour of plaintiff dated 27.1.2008 and 5.2.2008, which were
dishonoured on account of insufficient funds, leading to filing of the
suit. The appellant/defendant entered appearance, however, when the
summons of the judgment were served, no leave to defend application
was filed and consequently the suit was decreed vide order dated
30.11.2010.
3. The appellant/defendant moved an application under Order
37 Rule 4 CPC challenging the passing of the decree on account of
non-filing of leave to defend, and in which, the only averments made
with respect to the merits read as under:-
"6. That there are so many ground on which the defendant
want to submit before the Hon'ble Court for leave to defend as
the plaintiff has not paid the amount of Rs.7,80,000/- to the
defendant as well as the plaintiff has illegally occupied the part
of premises of the defendant and the defendant has filed a suit
for possession which is pending the court of Sh. Sanjay
Khanagwal, ACJ, KKD Courts, Delhi and the counter blast of if
the plaintiff has filed a present suit in question."
4. The trial Court by the impugned order dated 10.2.2011 has
held that the appellant/defendant has failed to allege and show special
circumstances for setting aside the judgment and decree dated
30.11.2010 and which was mandatory upon him in terms of Order 37
Rule 4 CPC in view of the judgment of the Supreme Court in the case
reported as Rajni Kumar Vs. Suresh Malhotra AIR 2003 SC 1322.
RFA No.178/2011 Page 2 of 3
5. I fully agree with the reasoning and conclusion of the
impugned order dated 10.2.2011 inasmuch as the decision of Rajni
Kumar (supra) makes it more than clear that an application under
Order 37 Rule 4 CPC is not similar to an application under Order 9 Rule
13 CPC, and, in an application under Order 37 Rule 4 CPC, it is
necessary for the appellant/defendant to plead facts which entitle him
grant of leave to defend. Para 6 of the application under Order 37 Rule
4 CPC quoted above, does not show any ground to be made out for
granting leave to defend.
6. I, therefore, do not find any illegality or perversity in the
impugned order dated 10.2.2011 which calls for interference by this
Court in appeal. Appeal is therefore dismissed, leaving the parties to
bear their own costs.
C.M. No.6124/2011 (stay) in RFA No.178/2011
Since the main appeal is dismissed, no orders are required
to be passed in this application which is disposed of as such.
MARCH 29, 2011 VALMIKI J. MEHTA, J.
Ne
