Delhi High Court
Ram Avtar Sharma vs Bharat Sharma on 26 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.No. 146/2014 & CM No. 16249/14 (stay)
% 26th September , 2014
RAM AVTAR SHARMA ......Petitioner
Through: None.
VERSUS
BHARAT SHARMA ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Petitioner/defendant by means of this petition under Section
115 of the Code of Civil Procedure, 1908 (CPC) impugns the order of the
trial court dated 1.7.2014 by which the trial court dismissed an application
filed under Order XXXVII Rule 4 (wrongly written as Rule 5) read with
Section 151 CPC and Section 5 of the Limitation Act, 1963 for condoning
the delay in filing appearance.
2. The facts of the case are that the respondent/plaintiff filed a suit
for recovery of moneys under Order XXXVII CPC on account of loan which
was advanced to the petitioner/defendant. Petitioner/defendant had issued a
C.R.P. 146/2014 Page 1 of 5
cheque which was dishonoured on presentation and hence the subject suit
was filed to claim the principal amount of Rs.5 lacs alongwith interest at
12% per annum.
3. As the petitioner/defendant did not file appearance, the suit was
decreed by the judgment dated 21.10.2011.
4. Petitioner/defendant alleged that he came to know of the suit
from his friend Sh. Anil on 11.2.2012 and thereafter he made enquiry and it
transpired that an ex parte judgment was passed on 21.10.2011. The subject
application was moved on 15.7.2013 stating that petitioner never knew of
the suit but only came to know of the suit through his friend Sh. Anil. It is
this application which has been dismissed by the trial court by the impugned
order dated 01.7.2014
5. Firstly, I may note that the application which was dismissed by
the impugned order dated 1.7.2014 was a second application, inasmuch as,
one other earlier application under Order IX Rule 13 read with Section 151
CPC was filed in which similar facts were averred and which application
was dismissed by the order dated 22.5.2013. The operative portion of the
order dated 22.5.2013 reads as under:-
" The present application has been moved u/o 9 Rule 13
r/w Section 151 CPC for setting aside the ex-parte order against
the defendant/applicant. The perusal of the file shows that the
C.R.P. 146/2014 Page 2 of 5
present case was filed against the defendant u/o XXXVII CPC.
The defendant was served and he did not put appearance within
the statutory period of ten days. Thereafter, the suit of the
plaintiff was decreed vide judgment dated 21.10.2011, by my
Ld. Predecessor. The case of the applicant/defendant is that he
came to know about the filing of the suit by the plaintiff
through his friend Sh. Anil on 11.2.2012. The defendant has
not disclosed in his application as to who is Sh. Anil and how
he came to know about the proceedings of this case. No
affidavit of the said Sh. Anil has been filed by the
applicant/defendant. Moreover, no ex parte order was ever
passed against the applicant/defendant. The suit of the plaintiff
was decreed as the defendant/applicant did not put appearance
within 10 days of his service and therefore, the suit had to be
decreed.
In view of the above discussion, I do not see any merit in
the applications. Accordingly, both the applications are
dismissed.
File be consigned to Record Room."
(Surinder Kumar Sharma)
ADJ/East/KKD/22.05.2013"
6. It is clear that the order dated 22.5.2013 dismissed the
application after considering merits also and not only on the technical
ground that it was not maintainable having been filed under Order IX Rule
13 CPC instead of Order XXXVII Rule 4 CPC. Therefore, the subject
application being the second application which has been dismissed by the
impugned order dated 1.7.2014 was in fact not maintainable, and was liable
to be dismissed in limine.
C.R.P. 146/2014 Page 3 of 5
7. Even assuming that the second application which has been
dismissed by the impugned order can be considered , the trial court rightly
notes that it is very conveniently stated that the petitioner/defendant came to
know of the suit through one Sh. Anil, however, the affidavit of Mr. Anil
was not filed. Also, there is no reason why Mr. Anil would come to know
about the ex parte judgment in the suit and would inform the
petitioner/defendant. The trial court in my opinion rightly holds that the
petitioner/defendant did not deliberately appear in the suit, and allowed the
ex parte judgment to be passed under Order XXXVII CPC, and thereafter
conveniently moved an application for setting aside the ex parte judgment
and decree.
8. There is another reason because of which the trial court has
rightly dismissed the application under Order XXXVII Rule 4 CPC
inasmuch as it is settled law that petitioner/defendant must state special
circumstances for setting aside the ex parte decree passed under Order
XXXVII CPC as held by the Supreme Court in the case of Rajni Kumar Vs.
Suresh Kumar Malhotra & Anr. (2003) 5 SCC 315 but no special
circumstances as to what was the defence on merits was stated in the subject
application.
C.R.P. 146/2014 Page 4 of 5
9. Therefore, looking at it from any manner as to no sufficient
reason having been given for condonation of delay, an earlier application on
similar ground having been already dismissed, petitioner having failed to
explain as to how Sh. Anil informedsss him of the suit and no affidavit was
filed of the so called friend etc etc, trial court was justified in passing the
impugned order.
10. Dismissed.
SEPTEMBER 26, 2014 VALMIKI J. MEHTA, J.
ib
