Asha Devi vs Satish Kumar
2012 Latest Caselaw 4044 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) 765/2012 & CM 13346-13347/2012

                                             Date of Decision: 10.07.2012

ASHA DEVI                                                  ..... Petitioner
                            Through:     Mr.Nikhil Kumar, Advocate.

                                   Versus

SATISH KUMAR                                             ..... Respondent
                            Through:

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution has been filed assailing order dated 28.02.2012 whereby an application under Order 9 Rule 13 r/w section 151 CPC of the petitioner was dismissed by the learned Senior Civil Judge (SCJ)-cum-Rent Controller (RC), North, Delhi.

2. The respondent had filed a suit against the petitioner for recovery of Rs.2,90,400/- along with pendentelite and future interest. The petitioner filed an application for leave to defend in the said suit. Since none appeared for the petitioner, her application was dismissed-in- default on 04.09.2008 and thereafter the suit was decreed against her on 15.09.2009.

3. The petitioner preferred a civil miscellaneous main petition no. 760/2011 before this Court. The same was. however, dismissed as

withdrawn with the directions given to the petitioner to move appropriate Court. It is how the instant application under Order 9 Rule 13 CPC came to be filed by the petitioner before the Rent Controller. It was submitted therein that the application for leave to defend was dismissed in default due to negligence of their counsel. Prayer was made for setting aside the decree dated 15.09.2009. The same was opposed by the respondent/Decree Holder (DH) that the instant application was not maintainable as the petitioner had not shown sufficient cause for non filing of the application within prescribed time and has also not disclosed any substantial defence entitling her the leave to defend. The application under Order 9 Rule 13 CPC of the petitioner was dismissed by the learned RC vide the impugned order reasoning as under:

"Averting back to the facts of the present case, the applicant has not shown special circumstances which prevented him from appearing on the several dates, when his application for leave to defend was listed or thereafter till the judgment & decree dated 15.09.2009 was passed. The absence of his counsel for more than one year does not constitute a sufficient cause for applicant. Admittedly, the application for leave to defend was dismissed in default by Ld. Predecessor on 04.09.2008 but suit was decreed on

15.09.2009. the applicant has also not disclosed that he has substantial defence to contest the suit in the present application which would entitle him to defend the suit, therefore, application u/o 9 rule 13 r/w Section 151 CPC as filed on behalf of applicant for setting aside the ex-parte judgment and decree dated 15.09.2009 passed u/o 37 CPC is devoid of any merits and stands dismissed being so."

4. I have heard learned counsel for the petitioner and perused the record.

5. The scope and ambit of the provisions given under Order 9 Rule 13 CPC are entirely distinct and different than the provisions of Order 37 Rule 4 CPC. An application under Order 9 Rule 13 CPC will succeed on showing availability of sufficient cause for non-appearance of the defendant. It is not in every case that the absence of defence counsel would constitute sufficient cause for a litigant. On the other hand it is for the litigant to show that there was a sufficient cause for default in appearance of the counsel. Under Order 37 Rule 4 CPC, a defendant has to show not only the special circumstances which prevented him from appearing or from applying for leave to defend, but also the facts which would entitle him to leave to defend. Failure of the defendant to disclose such facts which would entitle him to defend the case, would not call for any interference but lead to rejection of his application. In the case of Rajni Kumar v. Suresh Kumar Malhotra,

AIR 2003 SC 1322, the Apex Court also held that for seeking interference under Order 37 Rule 4 CPC, the defendant has to show not only the special circumstances which prevented him from appearing or applying for leave to defend, but also the facts which would entitle him for leave to defend.

6. Now taking note of the reasoning as recorded by the Rent Controller, as reproduced above, it is reiterated that the petitioner has nowhere shown any special circumstance which might have prevented him from appearing before the Court for several dates. It was not only once that his counsel absented, but, none appeared for him for more than one year. Even the application was dismissed in default on 04.09.2008, whereas the final judgment was passed a year thereafter on 15.09.2009.

7. In a suit decreed under Order 37 CPC, the application that would lie was to be under Order 37 Rule 4 CPC and not under Order 9 Rule 13 CPC. As noted above, the requirement of applicability of Order 37 Rule 4 CPC was of "special circumstances" which was much more than the sufficient cause of Order 9 Rule 13 CPC.

8. I do not see any infirmity or illegality in the impugned order. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

JULY 10 , 2012 awanish