Delhi High Court
Surjeet Singh vs Bal Kishan Goel on 8 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 769/2017 & CM No.32623/2017
% 8th September, 2017
SURJEET SINGH ..... Appellant
Through: Mr. Abhay Kumar, Adv.
versus
BAL KISHAN GOEL ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 96 of the Code of
Civil Procedure, 1908 (CPC) challenging the impugned order dated
27.5.2017 of the trial court whereby the trial court has dismissed the
application under Order XXXVII Rule 4 CPC filed by the
appellant/defendant and refused to set aside the judgment and decree
dated 22.12.2015 under Order XXXVII CPC for a sum of Rs.9 lacs
based on the dishonored cheque. Suit was decreed as appearance was
not entered by the appellant/defendant.
2. Appellant/defendant does not dispute that he was served
in the suit but his case pleaded was that he had gone on account of
death of his relative to his native village at Phagwada (Punjab) where
he fell ill, and after coming back the summons which were received in
the suit were lost. Appellant/defendant pleads that he came to know
about the suit only when he received notice of the execution
proceedings.
3. Trial court has dismissed the application under Order
XXXVII Rule 4 CPC, and the stand of the appellant/defendant, in
terms of the following paras of the impugned judgment:-
"10. The foremost question is whether the applicant/defendant has been
able to lay down cogent grounds for setting aside the judgment and decree
dt. 22.12.2015 and for condonation of delay in putting in appearance.
According to him, he had received the summons of the suit on 06.11.2015,
and thereafter, he went to Phagwada (Punjab) to attend the last rites of his
relative who had expired there. He further submitted that he became ill at
that place and could not return to Delhi and file appearance. It is to be
appreciated that the applicant/defendant has not mentioned the name or the
nature of relation of the said relative who expired nor has mentioned any
date when he had died. He has also failed to mention any date as to when he
left for Phagwada from Delhi or the date when the last rites of the said
relative were performed. The applicant has further failed to mention any
date when he fell ill, nature of his illness or the date when he became well
and returned to Delhi. Apart from that, no supporting documents have been
placed on record to substantiate his plea as aforesaid, such as any receipt of
the cremation ground, journey tickets from Delhi to Phagwada or back, any
medical prescription etc. Hence, the pleas taken by the applicant/defendant
are vague and cannot be accepted even on the face of it.
11. Similarly, the other plea taken by him that he lost the summons on
reaching Delhi can also be accepted. He has not shown as to where and in
whose custody he had kept the summons. He has also not shown as to what
efforts he made to trace the summons. He has failed to mention if he tried to
approach his Counsel to seek help to trace the court from where the
summons were issued. In case he would have made any sincere efforts, he
would have definitely come to know about the pendency of the suit and he
name of the Court. As per his averments, he kept silent for almost about an
year till 21.9.2016 when his Counsel inspected the case file on receipt of
notice of execution. It only shows his complete lackadaisical approach to
the matter. Hence, I am of the view that the applicant/defendant has failed
to show sufficient cause with any justifiable and cogent ground to condone
the delay in filing appeal and to set aside the decree dt. 22.12.2015."
(underlining added)
4. I completely agree with the aforesaid reasoning and
conclusions of the trial court because the appellant/defendant failed to
give the name of the relative who had expired as also the date when
the so called relative had expired. Also, no dates were given as to
when appellant/defendant left for Punjab from Delhi and when he
came back or when the last rites of the relative were performed.
Appellant/defendant failed to substantiate his pleas including by filing
any journey ticket or medical prescription of his alleged illness etc.
The plea of the appellant/defendant was also disbelieved by the trial
court that summons were lost because appellant/defendant failed to
show in whose custody the summons were and also that
appellant/defendant failed to make any efforts for tracing out from the
filing counter of the District Courts as regards the suit which was filed
and that he surprisingly kept silent for a year.
5. There is no ground to interfere in the impugned
judgment.
6. Dismissed.
SEPTEMBER 08, 2017/ib VALMIKI J. MEHTA, J
