Rajasthan High Court - Jodhpur

Ghyaneswar Bhati vs Suresh Dhariwal on 4 May, 2023

Bench: Pushpendra Singh Bhati

[2023/RJJD/012496]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5717/2023 Ghyaneswar Bhati S/o Shri Shreekishan Bhati, Aged About 51 Years, 170-A Bhopat Bhawan, Street Of Agarwal Tower, 2-B-C, Road, Sardarpura, Jodhpur, Proprietor M/s Bhopatram And Company (Previous Address P-19, Mandore Mandi), At Present Add E-2/10 Mandore Mandi, Jodhpur.

----Petitioner Versus Suresh Dhariwal S/o Late Shri Gumanmalji Dhariwal, 406, Mirdha Bhawan, First C Road, Sardarpura, Jodhpur (Raj.).

                                                                      ----Respondent


For Petitioner(s)          :     Mr. Devendra Bohra
For Respondent(s)          :     Mr. SC Maloo

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 27/04/2023 Pronounced on 04/05/2023

1. This writ petition under Article 227 of the Constitution of

India has been preferred claiming the following reliefs:

"(a) That the writ petition may kindly be allowed and the impugned order dated 14.02.2023 i.e. Annexure-P/4 may kindly be quashed and set aside; and

(b) By an appropriate writ order or direction, the application filed by the petitioner may kindly be allowed as prayed for in the interest of justice;

(c) Any other writ, direction or order which is deemed to be just and proper in the circumstances of this case may kindly be passed in favour of the petitioner.

(d) Costs of the writ petition may kindly be awarded in favour of petitioner."

2. As per the pleaded facts, the respondent-plaintiff filed a

suit, before the learned District Judge, Jodhpur Metropolitan,

[2023/RJJD/012496] (2 of 6) [CW-5717/2023]

under Order 37 Rule 2 of the Code of Civil Procedure (CPC) for

recovery of a sum of Rs.30,69,918/-. The learned Trial Court

issued summons on 17.08.2022 to the petitioner-defendant for his

appearance before the Court.

2.1 However, the petitioner-defendant could not appear before

the learned trial court in time, as the summons were received

(taamil) by his daughter on 01.09.2022. Thereafter, the petitioner-

defendant filed an application under Section 151 CPC for

condonation of delay in putting his appearance before the Court,

in pursuance of the summons order.

2.2 The learned trial court, however, vide the impugned order

dated 14.02.2023, rejected the said application on the ground that

the petitioner-defendant had failed to appear before the Court in

time, as required under Order 37 Rule 2/3 CPC, and for the said

delay, no justifiable reason was given by the petitioner. Thus,

aggrieved by the said impugned order, the present petition has

been preferred, claiming the afore-quoted reliefs.

3. Learned counsel for petitioner-defendant submitted that the

summons order was not received by the petitioner-defendant,

instead the same was received by his daughter on 01.09.2022.

Learned counsel gave further reasons for non-appearance of the

petitioner-defendant before the learned trial court; firstly, that the

petitioner-defendant was out of station during that period in

connection with his business and; secondly, he was busy in taking

care of his 80 years old mother, who was in poor health, which

was the main reason for the delay in appearance.

[2023/RJJD/012496] (3 of 6) [CW-5717/2023]

3.1 It was further submitted that the petitioner-defendant made

his appearance before the learned trial court on 21.09.2022 i.e.

after a delay of 10 days only.

3.2 It was also submitted that the respondent-plaintiff had filed

the suit for recovery of a sum of Rs. 30,69,918/- against the

petitioner-defendant, and thus, in the interest of justice and

according to the principle of equity, both the parties ought to be

given an adequate opportunity of being heard. It was asserted

that there were legit reasons, which caused the delay in making

appearance before the learned trial court, in a time bound manner.

4. On the other hand, the learned counsel for respondent-

plaintiff, while vehemently opposing the aforesaid submissions

made on behalf of the petitioner-defendant, submitted that the

learned trial court issued summons on 17.08.2022, which were

received by the petitioner-defendant's daughter on 01.09.2022;

however, despite the same, instead of appearing within 10 days as

per the provisions of Order 37 Rule 3 CPC, the petitioner-

defendant did not appear before the learned trial court in time,

and it was only after a delay of 20 days i.e. on 21.09.2022, that

the petitioner-defendant appeared before the learned trial court.

4.1 It was asserted that on the date fixed by the learned trial

court, since the concerned Court Clerk did not place summons

served upon the petitioner-defendant in the Court file, therefore,

for want of the service of summons, the matter was being

adjourned on 28.09.2022 and 15.10.2022; after placing of the

served summons in the Court file on 20.10.2022, it was argued

[2023/RJJD/012496] (4 of 6) [CW-5717/2023]

that the petitioner-defendant did not put in his appearance within

the prescribed period of 10 days. In support of his submission,

learned counsel relied upon the judgment rendered by a

Coordinate Bench of this Hon'ble Court at Jaipur Bench in the case

of Mohanlal & Co. and Anr. v. Kota Textiles & Anr. (Civil

Revision petition No. 82/2006, decided on 22.11.2006).

4.2 It was also submitted that the petitioner-defendant

malafidely with an intent to delay and prolong the proceedings

unnecessarily, did not appear before the learned trial court in a

timely manner.

4.3. It was further submitted that the petitioner-defendant could

not state any justifiable reason, which prevented him from making

his appearance before the learned trial court. It was also

submitted that had there been any truth in the reasons furnished

by the petitioner-defendant for the delay, instead of presenting

the application for condonation of delay on 20.10.2022, he would

have preferred the same on 21.09.2022 itself. The application so

preferred under Section 151 CPC, thus, did not merit acceptance,

and the same has rightly been rejected vide the impugned order.

4.4 It was also submitted that the contention of the petitioner-

defendant that no prejudice would be caused to the respondent-

plaintiff, if the application is allowed, is completely baseless, as

the petitioner-defendant received the due amount through

cheques, but the same was not repaid by him to the respondent-

plaintiff, which is causing serious prejudice and loss to the

[2023/RJJD/012496] (5 of 6) [CW-5717/2023]

respondent-plaintiff, coupled with loss of interest on the amount in

question.

5. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgment cited at the bar.

6. This Court observes that the petitioner-defendant owed a

sum of Rs. 30,69,918/- to the respondent-plaintiff and to recover

the same, a suit under Order 37 Rule 2 of CPC was instituted by

the respondent-plaintiff. Thereafter, summons were issued to the

petitioner-defendant; however, the delay caused in putting

appearance before the learned trial court was only on the part of

the petitioner-defendant, and thus, the impugned order passed by

the learned trial court in rejecting the application filed by the

petitioner-defendant, was perfectly justified in law.

7. This Court further observes that the petitioner-defendant

belatedly, after a period of 20 days, made his appearance before

the Court and presented the application for condonation of delay

in making such appearance before the leaned trial court, after

almost a month. It is further observed that the learned trial court

rejected the application as the same was not maintainable

according to the provisions of the Order 37 of CPC.

8. The provisions of Order 37 Rule 3 of CPC clearly provide for

the defendant to make his appearance before the Court, within a

period of 10 days, after service of the summons. For ready

reference, the said provision of law is reproduced as hereunder:

[2023/RJJD/012496] (6 of 6) [CW-5717/2023]

"3. Procedure for the appearance of defendant--

(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

(2) Unless otherwise order, all summonses, notices and other judicial processes, required to be served on the defendant, shall deemed to have been duly served on him if they are left at the address given by him for such service."

9. This Court further observes that the very objective of the

summary procedure under the CPC is to avoid unnecessary delay,

in the litigation process, by the defendant in the class of cases,

where speedy disposal is desirable, so as to prevent any monetary

loss to the concerned party.

10. Thus, in view of the above and looking into the factual matrix

of the present case, this Court does not find any legal infirmity in

the impugned order passed by the learned trial court, so as to

warrant any interference therein.