Sh. Gyan Singh vs Sh.Durga Pratap Singh
2014 Latest Caselaw 3477 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          C.R.P.46/2014
%                                                    1st August , 2014

SH. GYAN SINGH                                            ......Petitioner
                           Through:      Mr. Hitesh K. Monk, Advocate


                           VERSUS

SH.DURGA PRATAP SINGH                                       ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this petition under Section 115 of

the Code of Civil Procedure, 1908 (CPC) is to the impugned order of

the court below dated 05.2.2014 which has dismissed an application

filed by the petitioner/defendant under Order 37 Rule 4 CPC for

setting aside the judgment and decree dated 12.2.2013, which was

passed on account of not filing of the application for leave to defend

by the petitioner/defendant.

2. The case of the petitioner/defendant is that his counsel allegedly

got mixed up with the other side, and therefore, the leave to defend

application was not filed. However, the impugned order notes that the

case was in fact fixed subsequently for orders on 12.2.2013, but none

appeared again for the defendant even though there was a new

advocate who was appointed.

3. The court below notes that in an application under Order 37

Rule 4 CPC besides the aspect of non-service, petitioner must make

out a case on merits in view of the judgment of the Supreme Court in

the case of Rajni Kumar vs. Suresh Kumar Malhotra and Anr. AIR

2003 SC 1322, and that the petitioner/defendant has not made out any

case on merits because the petitioner/defendant had executed a

promissory note which was witnessed by one Sh.Ramesh, and

Sh.Ramesh Kumar Singh whose support the petitioner/defendant was

relying upon was of a different patronage.

4. The court below also notes that the stand of the

petitioner/defendant is not believable that the petitioner/defendant had

in fact taken a loan not from the respondent/plaintiff but from one

Sh.Ramesh of Rs.36,500/- and that plaintiff/defendant had already

paid a sum of Rs.91,700/- to the said Ramesh.

5. In view of the above, it is clear that the petitioner/defendant did

not file a leave to defend application, and wrongly tried to put blame

on his advocate/s. Even on merits, the petitioner/defendant has no

case because he had signed a promissory note which was witnessed

by one Sh.Ramesh, and therefore it could not be that the

petitioner/defendant had taken a loan from Sh.Ramesh, as was falsely

pleaded by the petitioner/defendant.

6. Dismissed.

VALMIKI J. MEHTA, J

AUGUST 01, 2014/KA