Gopal Prasad v. Vijender Singh

1. No one is present for the petitioner in spite of the matter having been passed over once. I have therefore gone through the record and am proceeding to dispose of the petition.

2. The present petition under Article 227 of the Constitution of India impugns the order dated 08.9.2014 of the court below dismissing the application of the petitioner/defendant under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 (CPC).

3. The subject suit for recovery of Rs. 4 lacs alongwith interest was filed by the respondent/plaintiff against the petitioner/defendant as the 2014:DHC:5289 petitioner/defendant had failed to repay the loan amount of Rs. 4 lacs which was granted.

4. A reading of the impugned order shows that the suit was decreed under the deeming provision of Order XXXVII CPC because the petitioner/defendant in spite of being served of the summons of the judgment did not file his leave to defend application. Trial court has noted that signatures appearing on the receipt of the summons of judgment are identical to the signatures appearing on the main summons of the suit, and both of which signatures are of Sh. Uma Shankar, son of the petitioner/defendant.

5. In view of the judgment of the Supreme Court in the case of Rajni Kumar Vs. Suresh Kumar Malhotra & Anr. (2003) 5 SCC 315 trial court has also rightly noted that the petitioner/defendant had to give special circumstances ie pleading a good case on merits for setting aside the judgment and decree on deemed admission dated 5.8.2014, however, petitioner/defendant has failed to show any special circumstances because no proof has been filed as to how the loan was repaid as was alleged by the petitioner/defendant and also that the complaint to the police was made more than two year after the loan was taken alleging that there was alleged force and coercion upon the petitioner/defendant.

6. Dismissed.

OCTOBER 13, 2014/ib VALMIKI J. MEHTA, J.