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r 9^ $-44 HIGH COURT OF DELHI
FAO(OS) 516/2013
M/S CREATION POINT Appellant
Through Mr A.K. Saldiuja, Adv.
FAO(OS) 516/2013
M/S CREATION POINT Appellant
Through Mr A.K. Saldiuja, Adv.
VERSUS
M/S SfflVAM ENTERPRISES Respondent Thi-ough Mi-.Rajat Wadhwa & Ms Chh-al Dugas, Adv.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE VIBHU BAKHRU
20.11.2013 CM No.18000/2013 (Exemption)
The exemption is allowed subject to alljust exceptions.
CM No.17998/2013 (condonation of delay)
The delay in filing the appeal is condoned.
The application stands disposed of
HON'BLE MR. JUSTICE VIBHU BAKHRU
20.11.2013 CM No.18000/2013 (Exemption)
The exemption is allowed subject to alljust exceptions.
CM No.17998/2013 (condonation of delay)
The delay in filing the appeal is condoned.
The application stands disposed of
FAQ(QS) 516/2013 & CM Nos.17997/2013
This appeal is directed against the order dated 29.07.2013 whereby several applications filed on behalf of the appellant/defendant were dismissed. The respondent had filed the suit being CS (OS) No.2693/2012 under Order 37 of the
CPC. In the said suit summons were served, admittedly, on the appellant/defendant on 16.10.2012. It is also clear that the appellant/ defendant ought to have entered appearance within 10 days thereof in temis of Order 37 Rule 3 (1) of the CPC. He did not enter appearance and as a result ofwhich the suit was decreed ex-parte on
07.12.2012. The applications filed by the defendant were under Section 5 of the
Limitation Act (lA No.3408/2013), under Order 37 Rule 4 CPC (lA No.3407/2013) for putting in appearance and under Order 37 Rule 7 read with Order 9 Rule 13 CPC and Section 151 CPC (lA No.3421/2013) seeking setting aside ofthe ex-parte decree dated 07.12.2012.
In these applications the appellant/defendant stated that his mother was seriously ill, as a result of which she had to be periodically hospitalised.
Consequently, he could not enter appearance within the stipulated period often days
2013:DHC:7051-DB nor could file his leave to defend. It is mentioned in the application that his mother has been hospitalised on four occasions. First of all, she was hospitalised for the period 13.08.2012 to 20.08.2012, secondly, from 26.09.2012 to 29.09.2012, thirdly she was hospitalised for one day on 31.10.2012 and finally from 22.11.2012 to
29.11.2012 when she passed away. It was also contended by the appellant/ defendant that the summons and connected papers had been placed by him in the factory and he had forgotten about the-same. It was only on 13.01.2013 that he leamt from the website of the High Court that the suit was decreed ex-parte on 07.12.2012.
Thereafter, on 30.01.2013 the present set of applications were filed by him.
The learned Single Judge considered these aspects ofthe matter and found that there was no explanation given for not entering appearance within ten days of service of summons which admittedly took place on 16.10.2012. It is to be noted that the appellant's/defendant's mother was not hospitalised during the period of ten days commencing on 16.10.2012 and therefore, no excuse.has been set up by the appellant/ defendant for this delay. Apart from this even after his mother passed away on
29.11.2012, the applications were filed two months later on 30.01.2013. The learned
Single Judge came to the conclusion that this alleged circumstance set forth by the appellant/ defendant did not constitute 'special circumstances' as contemplated under
Order 37 Rule 4 CPC.
The learned Single Judge also refen-ed to the decision of the Supreme Court in
Raini Kumar v. Suresh Kumar Malhotra and Anr: (2003) 5 SCC 315, wherein the expression 'special circumstances' has been explained. The Supreme Court observed that in an application under Order 37 Rule 4 CPC, the Court has to determine the question, with regard to 'special circumstances', on the facts of each case as to whether the circumstances pleaded are so unusual or extraordinaiy as to justify putting the clock back by setting aside the decree. The Supreme Court also observed that it is not enough for the defendant to show any special circumstance which prevented him from appearing as he has also to show by an affidavit or otherwise the facts which would entitle him leave to defend the suit and the Supreme Court categorically observed that in this respect Rule 4 of Order 37 CPC was materially different from Rule 13 of Order 9 CPC.
After noting the above observations of the Supreme Court, the learned Single
Judge held that apart from these circumstances, for the non-appearance and non-filing of the leave to defend, not being specifically explained, the appellant/defendant had also not set up a case, which would entitle him for grant of leave to defend the suit. It is in these circumstances that the learned Single Judge dismissed the applications filed on behalf ofthe appellant/ defendant.
The learned counsel for the appellant/ defendant sought to rely on the decision of the Supreme Court in the case of Guru Jambheshwar University v. Dharam Pal:
This appeal is directed against the order dated 29.07.2013 whereby several applications filed on behalf of the appellant/defendant were dismissed. The respondent had filed the suit being CS (OS) No.2693/2012 under Order 37 of the
CPC. In the said suit summons were served, admittedly, on the appellant/defendant on 16.10.2012. It is also clear that the appellant/ defendant ought to have entered appearance within 10 days thereof in temis of Order 37 Rule 3 (1) of the CPC. He did not enter appearance and as a result ofwhich the suit was decreed ex-parte on
07.12.2012. The applications filed by the defendant were under Section 5 of the
Limitation Act (lA No.3408/2013), under Order 37 Rule 4 CPC (lA No.3407/2013) for putting in appearance and under Order 37 Rule 7 read with Order 9 Rule 13 CPC and Section 151 CPC (lA No.3421/2013) seeking setting aside ofthe ex-parte decree dated 07.12.2012.
In these applications the appellant/defendant stated that his mother was seriously ill, as a result of which she had to be periodically hospitalised.
Consequently, he could not enter appearance within the stipulated period often days
2013:DHC:7051-DB nor could file his leave to defend. It is mentioned in the application that his mother has been hospitalised on four occasions. First of all, she was hospitalised for the period 13.08.2012 to 20.08.2012, secondly, from 26.09.2012 to 29.09.2012, thirdly she was hospitalised for one day on 31.10.2012 and finally from 22.11.2012 to
29.11.2012 when she passed away. It was also contended by the appellant/ defendant that the summons and connected papers had been placed by him in the factory and he had forgotten about the-same. It was only on 13.01.2013 that he leamt from the website of the High Court that the suit was decreed ex-parte on 07.12.2012.
Thereafter, on 30.01.2013 the present set of applications were filed by him.
The learned Single Judge considered these aspects ofthe matter and found that there was no explanation given for not entering appearance within ten days of service of summons which admittedly took place on 16.10.2012. It is to be noted that the appellant's/defendant's mother was not hospitalised during the period of ten days commencing on 16.10.2012 and therefore, no excuse.has been set up by the appellant/ defendant for this delay. Apart from this even after his mother passed away on
29.11.2012, the applications were filed two months later on 30.01.2013. The learned
Single Judge came to the conclusion that this alleged circumstance set forth by the appellant/ defendant did not constitute 'special circumstances' as contemplated under
Order 37 Rule 4 CPC.
The learned Single Judge also refen-ed to the decision of the Supreme Court in
Raini Kumar v. Suresh Kumar Malhotra and Anr: (2003) 5 SCC 315, wherein the expression 'special circumstances' has been explained. The Supreme Court observed that in an application under Order 37 Rule 4 CPC, the Court has to determine the question, with regard to 'special circumstances', on the facts of each case as to whether the circumstances pleaded are so unusual or extraordinaiy as to justify putting the clock back by setting aside the decree. The Supreme Court also observed that it is not enough for the defendant to show any special circumstance which prevented him from appearing as he has also to show by an affidavit or otherwise the facts which would entitle him leave to defend the suit and the Supreme Court categorically observed that in this respect Rule 4 of Order 37 CPC was materially different from Rule 13 of Order 9 CPC.
After noting the above observations of the Supreme Court, the learned Single
Judge held that apart from these circumstances, for the non-appearance and non-filing of the leave to defend, not being specifically explained, the appellant/defendant had also not set up a case, which would entitle him for grant of leave to defend the suit. It is in these circumstances that the learned Single Judge dismissed the applications filed on behalf ofthe appellant/ defendant.
The learned counsel for the appellant/ defendant sought to rely on the decision of the Supreme Court in the case of Guru Jambheshwar University v. Dharam Pal:
ORDER
(2007) 2 see 265, wherein the Supreme Court observed that while interpreting the Statute, natural and ordinary meaning of the words are not to be departed from unless it can be shown that the legal context in which the words are used required a different meaning. We fail to see, as to how this decision would come to the appellant's aid, particularly, in view of the interpretation given by the Supreme Court, in the case of Rajni Kumar (supra), to the expression 'special circumstances' which has been used in Order 37 Rule 4 of the CPC. We are of the view that the learned Single Judge has clearly explainedthe law laid down by the Supreme Court in the case of Rajni Kumar (supra) and has con'ectly applied the same to the facts ofthe case. No cause for interference has been made out. The appeal is dismissed. There shall be no order as to costs.
KDAR DUE BADAR DURREZ AHMED, J VIBHU BAKHRU, J NOVEMBER 20, 2013/ns'