RAM AVTAR SHARMA v. BHARAT SHARMA

1. Petitioner/defendant by means of this petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order of the trial court dated 1.7.2014 by which the trial court dismissed an application filed under Order XXXVII Rule 4 (wrongly written as Rule 5) read with Section 151 CPC and Section 5 of the Limitation Act, 1963 for condoning the delay in filing appearance.

2. The facts of the case are that the respondent/plaintiff filed a suit for recovery of moneys under Order XXXVII CPC on account of loan which was advanced to the petitioner/defendant. Petitioner/defendant had issued a 2014:DHC:5056 cheque which was dishonoured on presentation and hence the subject suit was filed to claim the principal amount of Rs.[5] lacs alongwith interest at 12% per annum.

3. As the petitioner/defendant did not file appearance, the suit was decreed by the judgment dated 21.10.2011.

4. Petitioner/defendant alleged that he came to know of the suit from his friend Sh. Anil on 11.2.2012 and thereafter he made enquiry and it transpired that an ex parte judgment was passed on 21.10.2011. The subject application was moved on 15.7.2013 stating that petitioner never knew of the suit but only came to know of the suit through his friend Sh. Anil. It is this application which has been dismissed by the trial court by the impugned order dated 01.7.2014

5. Firstly, I may note that the application which was dismissed by the impugned order dated 1.7.2014 was a second application, inasmuch as, one other earlier application under Order IX Rule 13 read with Section 151 CPC was filed in which similar facts were averred and which application was dismissed by the order dated 22.5.2013. The operative portion of the order dated 22.5.2013 reads as under:- “ The present application has been moved u/o 9 Rule 13 r/w Section 151 CPC for setting aside the ex-parte order against the defendant/applicant. The perusal of the file shows that the present case was filed against the defendant u/o XXXVII CPC. The defendant was served and he did not put appearance within the statutory period of ten days. Thereafter, the suit of the plaintiff was decreed vide judgment dated 21.10.2011, by my Ld. Predecessor. The case of the applicant/defendant is that he came to know about the filing of the suit by the plaintiff through his friend Sh. Anil on 11.2.2012. The defendant has not disclosed in his application as to who is Sh. Anil and how he came to know about the proceedings of this case. No affidavit of the said Sh. Anil has been filed by the applicant/defendant. Moreover, no ex parte order was ever passed against the applicant/defendant. The suit of the plaintiff was decreed as the defendant/applicant did not put appearance within 10 days of his service and therefore, the suit had to be decreed. In view of the above discussion, I do not see any merit in the applications. Accordingly, both the applications are dismissed. File be consigned to Record Room.” (Surinder Kumar Sharma) ADJ/East/KKD/22.05.2013”

6. It is clear that the order dated 22.5.2013 dismissed the application after considering merits also and not only on the technical ground that it was not maintainable having been filed under Order IX Rule 13 CPC instead of Order XXXVII Rule 4 CPC. Therefore, the subject application being the second application which has been dismissed by the impugned order dated 1.7.2014 was in fact not maintainable, and was liable to be dismissed in limine.

7. Even assuming that the second application which has been dismissed by the impugned order can be considered, the trial court rightly notes that it is very conveniently stated that the petitioner/defendant came to know of the suit through one Sh. Anil, however, the affidavit of Mr. Anil was not filed. Also, there is no reason why Mr. Anil would come to know about the ex parte judgment in the suit and would inform the petitioner/defendant. The trial court in my opinion rightly holds that the petitioner/defendant did not deliberately appear in the suit, and allowed the ex parte judgment to be passed under Order XXXVII CPC, and thereafter conveniently moved an application for setting aside the ex parte judgment and decree.

8. There is another reason because of which the trial court has rightly dismissed the application under Order XXXVII Rule 4 CPC inasmuch as it is settled law that petitioner/defendant must state special circumstances for setting aside the ex parte decree passed under Order XXXVII CPC as held by the Supreme Court in the case of Rajni Kumar Vs. Suresh Kumar Malhotra & Anr. (2003) 5 SCC 315 but no special circumstances as to what was the defence on merits was stated in the subject application.

9. Therefore, looking at it from any manner as to no sufficient reason having been given for condonation of delay, an earlier application on similar ground having been already dismissed, petitioner having failed to explain as to how Sh. Anil informedsss him of the suit and no affidavit was filed of the so called friend etc etc, trial court was justified in passing the impugned order.

10. Dismissed.

SEPTEMBER 26, 2014 VALMIKI J. MEHTA, J. ib