Delhi High Court
Ms. Gagan Dhir Nee Manocha vs Punjab & Sind Bank & Ors. on 5 September, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.No.136/2014
% 5th September, 2014
MS. GAGAN DHIR NEE MANOCHA ......Petitioner
Through: Mr. Satyender Chahar, Advocate.
VERSUS
PUNJAB & SIND BANK & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.14634/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ C.R.P. No.136/2014
2. 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
trial court dated 2.5.2014 by which the trial court refused to set aside the
judgment/order dated 1.9.2009 decreeing the suit of the respondent
no.1/bank under Order XXXVII Rule 4 CPC. The suit was decreed by
dismissing the leave to defend application for non-prosecution.
3. Since the aforesaid impugned order is a short order, I reproduce
the same as under:-
"1. This is to adjudicate upon the application u/O 37 Rule 4 CPC r/w
Section 151 CPC filed on 27.04.2011 for setting aside the judgment /
order dt.01.09.2009 as against the defendant no.3/applicant.
2. File perused. Counsels heard earlier.
3. Present suit filed in a summary mode u/O 37 CPC for the recovery
of Rs. 8,39,017.25/- was so filed in January, 1985. During the course
of the proceedings, vide specific orders dt. 25.03.2009 & 20.04.2009,
the defendants including the applicant herein had duly been apprised
that the present one was a matter pertaining to the year 1985 and was
one of the oldest pending matters. However, despite these specific
observations no one including the applicant herein, cared for
appearing and defending the case and ultimately the Ld. Predecessor
of this Court vide her order dt. 01.09.2009 dismissed the leave to
defend application of the defendants no. 2, 3, 4 and 6; indefault, and
decreed the suit against them. The defendant no. 3 is the applicant
herein.
4. For the purpose of invoking the provision u/s 37 (4) CPC, it is
required on the part of the applicant to show special circumstances
which prevented her from defending her case, which; in the given
eventuality, appear altogether missing. In the entire application in
hand, it has nowhere been pleaded as to what prevented her from
appearing and defending herself when as a matter of fact all the
defendants including herself had duly been served in the mode and
manner required in a suit like the present one.
5. Furthermore, even the application in hand has been filed at a much
belated stage that too without even pleading any reasons thereof. As a
matter of fact, the application filed on 27.04.2011 is in respect of the
order / decree dt. 01.09.2009 wherein, there is nothing explained with
regard to the inordinate long delay in approaching the Court for the
relief in question. Hence, in this context also, the application is liable
to be dismissed. Ordered accordingly." (underlining added)
4. A reference to the above order shows that for repeated hearings,
the leave to defend application was not pursued and therefore the same was
dismissed in default. Not only, the application for leave to defend was
rightly dismissed in default, the subject application for setting aside the
judgment/order dated 1.9.2009 was moved much subsequently on 27.4.2011
i.e after roughly one and a half years and that too without giving adequate
reasons explaining the delay. Therefore, the trial court was completely
justified in passing the impugned order dated 2.5.2014 in refusing to recall
the judgment/order decreeing the suit on 1.9.2009.
5. Dismissed.
VALMIKI J. MEHTA, J
SEPTEMBER 05, 2014
Ne
