Delhi High Court
Mukesh Kumar vs Maan Singh on 8 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.1019/2017 and C.M. No.4954/2018 (stay)
% 8th February, 2018
MUKESH KUMAR ..... Appellant
Through: Mr. M.K. Singh, Advocate.
versus
MAAN SINGH ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Respondent is served. No one is present for the
respondent in spite of the matter having been called out for the second
time.
2. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) impugns the judgment of the Trial
Court dated 8.9.2017 by which trial court has refused to condone the
delay in filing of the appearance under Order XXXVII CPC and has
decreed the suit. The delay in filing the appearance is of
approximately 60 days.
RFA No.1019/2017 Page 1 of 3
3. Facts
of the present case are that the appellant/defendant
pleaded that he was served with summons of the suit under Order
XXXVII CPC through his wife on 21.1.2017, however, since the next
date of hearing mentioned in the AD card was 23.3.2017, hence the
appellant/defendant who was in his village in Vaishali in Bihar for
treating his old father was under a misconception that in the suit
appearance will have to be put on 23.3.2017. On 15.3.2017 on coming
back from village when the appellant/defendant went to his Advocate
it transpired that the suit was under Order XXXVII CPC in which
appearance was to be put within 10 days of the service, and therefore,
it is argued that there is genuine misunderstanding on the part of the
defendant for non-filing appearance in time in the suit filed under
Order XXXVII CPC.
4. It has been held by the Supreme Court in the case of N.
Balakrishnan Vs. M. Krishnamurthy AIR 1998 SC 3222 that once
there is delay then some sort of negligence is implicit but unless the
delay is caused for malafide reasons or that the delay amounts to gross
negligence, Courts should be liberal in condoning the delay. I may
note that in the present case the appellant/defendant derives no benefit
of delay in filing of the appearance in the Order XXXVII CPC suit
because the consequence of such non-appearance will be straightaway
decreeing of the Order XXXVII CPC suit and therefore the explanation
offered by the appellant/defendant with respect to wrong impression on
account of next date being fixed in the suit under Order XXXVII CPC as
23.3.2017, therefore there is sufficient reason for filing delay in
appearance. Also, the delay in filing the appearance, it is noted is not of
many months or more than a year, and therefore the respondent/plaintiff
can be compensated by costs for condoning the delay.
5. In view of the above discussion, this appeal is allowed.
Impugned order dated 8.9.2017 and the consequent judgment passed
decreeing the suit under Order XXXVII CPC is set aside subject to the
appellant/defendant paying a sum of Rs.15,000/- as costs to the
respondent/plaintiff before the trial court.
6. Parties to appear before the District & Sessions Judge
(North), Rohini Courts, Delhi on 13th March, 2018 and the District &
Sessions Judge will mark the suit for disposal to a competent court in
accordance with law.
FEBRUARY 08, 2018 VALMIKI J. MEHTA, J
Ne
