Delhi High Court
Madan Lal Suryawanshi vs Tara Devi (Now Deceased) Through ... on 26 August, 2022
$~74(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 863/2022, CM 37037/2022 and CM 37038/2022
MADAN LAL SURYAWANSHI ..... Petitioner
Through: Mr. Sumit Chandra, Adv. with
petitioner in person
versus
TARA DEVI (NOW DECEASED)
THROUGH ITS LRS ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C .HARI SHANKAR
JUDGMENT (ORAL)
% 26.08.2022
1. Suit 212/2010, under Order XXXVII of the Code of Civil
Procedure, 1908 (CPC) for recovery of ₹ 2,45,050/-, which was
instituted by the respondent against the petitioner, was decreed ex
parte by the learned Civil Judge, vide judgment and decree dated 25th
May 2011, to the extent of ₹ 1,45,000/- in favour of the respondent
and against the petitioner.
2. The petitioner assailed the said decision before this Court by
way of CM (M) 18/2016, which was dismissed, reserving liberty,
however, with the petitioner to prosecute his interest before the
learned Civil Judge by raising the issue of abatement of proceedings in
the suit, if a case for such request was made out. The concluding
paragraphs of the said decision read thus:
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:30.08.2022
13:01:24
"Whilst in the absence of appropriate steps in terms
of Order XXII CPC, the petitioner cannot take these
proceedings further, the impugned order even otherwise is
not found to be suffering from any error. The learned trial
judge took a very fair view of the matter by not only
granting relief to the defendant by reviving the
proceedings in the suit setting aside the ex parte
judgment, but also protected the interest of the plaintiff of
the case by requiring deposit of about half of the principal
sum claimed in the suit.
In the above facts and circumstances, no case for
interference by this Court at this stage is made out.
The petition is disposed of with clarification that the
defendant may prosecute his interest before the trial Court
including by raising issue of abatement of the proceedings
in the suit, if a case for such request is made out.
The petition and the application filed therewith are
disposed of in above terms."
3. The petitioner, thereafter, filed an application under Order IX
Rule 13 for setting aside of the ex parte judgement dated 25th May
2011 along with an application under Section 5 of the Limitation Act.
The delay in filing of the said application was condoned and the
judgement dated 25th May 2011 was set aside by the ld. Civil Judge,
subject to deposit of sum of ₹ 75,000/-.
4. Despite the dismissal of the CM (M) 18/2016, the petitioner,
instead of depositing the aforesaid amount of ₹ 75,000/- in Court, the
petitioner moved Application No. Misc. CJ 59975/2016 before the
Civil Judge for a reduction of the said amount of deposit. Quite
obviously, this application was misconceived, as this Court had upheld
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:30.08.2022
13:01:24
the direction for deposit of ₹ 75,000/-.
5. By the impugned order dated 29th March 2022, the learned Civil
Judge has, noting the fact that despite the dismissal, by this Court, vide
its order dated 12th February 2018, of CM(M) 18/2016, the petitioner
had yet not deposited the amount of ₹ 75,000/-, dismissed the
application, clarifying, in the process, that the judgment and decree
dated 25th May 2011 would continue to remain in operation.
6. Against the said order dated 29th March 2022, the petitioner
moved an application for review, which stands dismissed by order
dated 16th July 2022, also impugned herein.
7. Mr. Sumit Chandra, learned Counsel for the petitioner, submits,
on instructions, that his client is willing to deposit the aforesaid
amount of ₹ 75,000/-.
8. Complete miscarriage of justice would result, in the opinion of
this Court, if the said offer is accepted at this stage. The petitioner
was directed to deposit ₹ 75,000/- as far back as on 18th September
2015. CM (M) 18/2016, under Article 227 of the Constitution of
India, preferred by him against the said order, stood dismissed by this
Court by order dated 12th February 2018. We are now six years since
18th September 2015 and over four years since 12th February 2018. Till
date, the said amount has not been deposited.
9. Article 227 of the Constitution of India confers, on the High
Court, supervisory, not amnesty, jurisdiction.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:30.08.2022
13:01:24
10. No fault can, therefore, be found with the decision of the
learned Civil Judge, as would merit interference by this Court within
the limited confines of the jurisdiction vested in it by Article 227 of
the Constitution of India.
11. The petition is accordingly dismissed in limine. All
miscellaneous applications also stand disposed of.
12. This Court records its appreciation for the efforts of Mr. Sumit
Chandra, who, on a day's notice, has competently canvassed the case
of the petitioner.
13. This order would not, however, preclude the petitioner from
approaching the learned Civil Judge with an offer of deposit. In case
he does so, it would be for the learned Civil Judge to take a decision
either to accept the offer or reject the offer and, if the decision is to
accept the offer, to also decide on the amount that the petitioner would
have to pay.
C.HARI SHANKAR, J
AUGUST 26, 2022
r.bararia
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:30.08.2022
13:01:24
