Mahesh Kumar Joshi vs Madan Singh Negi
2012 Latest Caselaw 3186 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment:11.05.2012

+     CM(M) 564/2012 & CM No. 8644/2012

      MAHESH KUMAR JOSHI                         ..... Petitioner
                     Through:         Mr.Rajeev Sharma, Adv.
              versus

      MADAN SINGH NEGI                         ..... Respondent
                   Through:           Nemo.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Impugned order is dated 24.02.2010. The suit filed by the plaintiff

under Order XXXVII of the Code of Civil Procedure (hereinafter

referred to as the „Code‟) had been decreed.

2 Record shows that the present suit has been filed by the plaintiff

Madan Singh Negi for recovery of Rs. 3 lacs on the basis of two post

dated cheques i.e. Rs.50,000/- and Rs.2,50,000/- bearing No. 185286

and 185287 dated 29.06.2009 and 09.07.2009 drawn on the Central

Bank of India, Morigate, Delhi; contention was that these amounts had

been paid by the defendant to the plaintiff as part consideration against

the property pursuant to the documents of sale having been executed by

the plaintiff in favour of the defendant after handing over the vacant and

peaceful possession of the suit property to the defendant. Record further

shows that there is no dispute to the fact that the wife of the defendant

was served with the summons of the suit on 19.12.2009; however

appearance was not put in the Court by the defendant up to 24.02.2010.

There appears to be absolutely no explanation whatsoever for the late

appearance of the defendant; contention was that the defendant was

illiterate and he was not aware of the procedure and as such the

defendant did not file the memo of appearance in time. Admittedly

memo of appearance has to be filed within ten days from the date of

service which was no done. On the same day i.e. on 24.02.2010 ex-parte

judgment and decree followed in favour of the plaintiff.

3 Thereafter an application under Order XXXVII Rule 4 of the

Code was filed by the appellant seeking setting aside of the aforenoted

ex-parte judgment and decree; grounds and "special circumstances" as

contained in the aforenoted application are mentioned in para 14. The

whole bone of contention which is also the primary argument urged

before this Court is that the power of attorney vested in Madan Singh

Negi to file the present suit does not at all mention the property in

dispute and attention has been drawn to the aforenoted document;

further contention being that the attorney also does not given power to

the plaintiff to file the present suit in the absence of which the suit was

not maintainable. To support this submission, learned counsel for the

petitioner has placed reliance upon a judgment reported as AIR 1965 SC

1144Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas;

contention being that the allegations in the plaint are deemed to be

admitted but it is also an obligatory duty on the part of the Court that the

allegations contained in the plaint do make out a case for a decree; the

Court cannot be a mute spectator. There is no doubt to this proposition

as has been pointed out by the learned counsel for the petitioner but the

power of attorney which has been highlighted and vehemently argued

before this Court is not the subject matter of the instant transaction; the

instant transaction as noted supra relates to two post-dated cheques of

Rs.50,000/- and Rs.2,50,000/- in favour of the plaintiff. There is no

dispute on this. It is not the case of the defendant that the said cheques

have not been issued by him. His whole case is bordered upon the fact

that the plaint has not made a reference to the property. This submission

of the learned counsel for the petitioner carries no force as the details of

the property are in no manner connected with the issue in the present

suit. As noted supra present suit has been filed under the summary

procedure under Order XXXVII of the Code for recovery of the

amounts of the aforenoted two dishonoured cheques. There is also no

dispute that such a suit on these negotiable instruments is maintainable

under Order XXXVII of the Code. It is not the case of the petitioner that

he has not signed these cheques and this transaction has not been entered

into by him. Section 118 of the Negotiable Instrument Act also casts a

presumption in favour of such a negotiable instrument which is

presumed to be an instrument drawn for consideration.

4 No other special circumstance has been pleaded or has been urged

or argued.

5 The Apex Court in AIR 2003 (3) SC 1322 Rajni Kumar Vs.

Suresh Kumar Malhotra in this context had inter-alia held as under:-

"The expression' special circumstances' is not defined in the C.P.C. nor is it capable of any precise definition by the court because problems of human being are so varied and complex, In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37,Rule 4, the court has to determine

the question, on the facts each case, as to whether circumstances pleaded are so unusual or extra ordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit."

6 The impugned judgment in no manner calls for any interference.

In the absence of any memo of appearance having been filed on record,

the allegations contained in the plaint were rightly deemed to be

admitted as a result of which the decree was followed in favour of the

plaintiff.

7      Petition is without any merit. Dismissed.




                                                     INDERMEET KAUR, J
MAY          11, 2012
A