Satyender Chahar v. Punjab & Sind Bank

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. + C.R.P. No.136/2014

2. The challenge by means of this petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is to the impugned order of the trial court dated 2.5.2014 by which the trial court refused to set aside the judgment/order dated 1.9.2009 decreeing the suit of the respondent 2014:DHC:4434 no.1/bank under Order XXXVII Rule 4 CPC. The suit was decreed by dismissing the leave to defend application for non-prosecution.

3. Since the aforesaid impugned order is a short order, I reproduce the same as under:- “1. This is to adjudicate upon the application u/O 37 Rule 4 CPC r/w Section 151 CPC filed on 27.04.2011 for setting aside the judgment / order dt.01.09.2009 as against the defendant no.3/applicant.

2. File perused. Counsels heard earlier.

3. Present suit filed in a summary mode u/O 37 CPC for the recovery of Rs. 8,39,017.25/- was so filed in January, 1985. During the course of the proceedings, vide specific orders dt. 25.03.2009 & 20.04.2009, the defendants including the applicant herein had duly been apprised that the present one was a matter pertaining to the year 1985 and was one of the oldest pending matters. However, despite these specific observations no one including the applicant herein, cared for appearing and defending the case and ultimately the Ld. Predecessor of this Court vide her order dt. 01.09.2009 dismissed the leave to defend application of the defendants no. 2, 3, 4 and 6; indefault, and decreed the suit against them. The defendant no. 3 is the applicant herein.

4. For the purpose of invoking the provision u/s 37 (4) CPC, it is required on the part of the applicant to show special circumstances which prevented her from defending her case, which; in the given eventuality, appear altogether missing. In the entire application in hand, it has nowhere been pleaded as to what prevented her from appearing and defending herself when as a matter of fact all the defendants including herself had duly been served in the mode and manner required in a suit like the present one.

5. Furthermore, even the application in hand has been filed at a much belated stage that too without even pleading any reasons thereof. As a matter of fact, the application filed on 27.04.2011 is in respect of the order / decree dt. 01.09.2009 wherein, there is nothing explained with regard to the inordinate long delay in approaching the Court for the relief in question. Hence, in this context also, the application is liable to be dismissed. Ordered accordingly.” (underlining added)

4. A reference to the above order shows that for repeated hearings, the leave to defend application was not pursued and therefore the same was dismissed in default. Not only, the application for leave to defend was rightly dismissed in default, the subject application for setting aside the judgment/order dated 1.9.2009 was moved much subsequently on 27.4.2011 i.e after roughly one and a half years and that too without giving adequate reasons explaining the delay. Therefore, the trial court was completely justified in passing the impugned order dated 2.5.2014 in refusing to recall the judgment/order decreeing the suit on 1.9.2009.

5. Dismissed.

VALMIKI J. MEHTA, J SEPTEMBER 05, 2014 Ne