Full Text
Translation output
$-5 HIGH COURT OF DELHI
RSA 187/2012
KAMLA PRASAD SINGH Appellant
Through: Mr. S.S. Pargai, Advocate.
RSA 187/2012
KAMLA PRASAD SINGH Appellant
Through: Mr. S.S. Pargai, Advocate.
VERSUS
TRIBHUWAN SINGH Respondent
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
05.02.2013 C.M. No.19911/2012 (for exemption)
Exemption allowed, subject to the deficiency being rectified.
The application stands disposed of R.S.A. No.187/2012 & C.M. No.19911/2012 (for stay)
This is a Regular Second Appeal under Section 100 CPC against
05.02.2013 C.M. No.19911/2012 (for exemption)
Exemption allowed, subject to the deficiency being rectified.
The application stands disposed of R.S.A. No.187/2012 & C.M. No.19911/2012 (for stay)
This is a Regular Second Appeal under Section 100 CPC against
ORDER
dated 22.8.2012 passed by the learned Additional District Judge, Karkardooma Courts.
I have heard the learned counsel for the appellant.
Briefly stated the facts of the case are that the respondent filed a summary suit for recoveiy of ?2,50,000/- which was given by way of loan to the appellant/defendant by the respondent/plaintiff A notice under Order 37
2013:DHC:8602 'V CPC was issued to the appellant/defendant by the trial court. The appellant filed an application under Order 37 Rule 3 sub-clause 5 read with Section 151
CPC seeking leave to defend. The appellant was not able to make out a triable issue for grant of leave to defend as a consequence of which the learned Civil
Judge dismissed the leave to defend application and passed a decree for the said amount.
Feeling aggrieved by the said order of rejection of leave to defend application, the appellant preferred the first appeal which came to be decided by the learned Additional District Judge. In the said appeal also, the appellate court did not accept the plea of the appellant that the cheque in question was issued wrongly by him to one Mahinder Singh for the sum of ^30,000/- which has been misused. The learned ADJ, by a detailed order, upheld the order of the learned Civil Judge on 22.8.2012. Thus, there is a concurrent finding of fact that the appellant herein has not been able to make out any triable issue which would warrant the grant of leave to defend in summary suit.
^Feeling aggrieved, the appellant has filed the present regular second appeal. In this appeal (at page No.10), six questions of law have been formulated as substantial question of law. Out of these questions, none of the question is essentially a substantial question of law which would warrant interference by this court as all these questions which have been referred to by the appellant in the appeal are questions of fact. On oral submissions also, the learned counsel has not been able to make out any substantial question of law arising from the appeal. On the contrary, in support of his contention, the learned counsel for the appellant has sought to place reliance on the judgment titled Krishnan v^. Backiam & Anr.; 2007 (4) RCR (Civil) 511. The attention of the court has been drawn to paragraph 11 of the said judgment. I have gone through the said judgment and find that instead of supporting the case of the appellant, it clearly affirms that the second appeal is admissible only on a substantial question of law arising out ofthe pleadings of the parties.
In the instant case, it has already been observed that so far as the finding of fact by the first appellate court and the trial court is concerned, that is final.
On perusal of the two orders passed by the trial court and the appellate court, I do not find that the finding arrived at by the two courts below is perverse.
Since no substantial question of law is arising from the present regular second appeal, the same is dismissed. '
V.K. SHALI, J.
FEBRUARY 05, 2013 'AA'
I have heard the learned counsel for the appellant.
Briefly stated the facts of the case are that the respondent filed a summary suit for recoveiy of ?2,50,000/- which was given by way of loan to the appellant/defendant by the respondent/plaintiff A notice under Order 37
2013:DHC:8602 'V CPC was issued to the appellant/defendant by the trial court. The appellant filed an application under Order 37 Rule 3 sub-clause 5 read with Section 151
CPC seeking leave to defend. The appellant was not able to make out a triable issue for grant of leave to defend as a consequence of which the learned Civil
Judge dismissed the leave to defend application and passed a decree for the said amount.
Feeling aggrieved by the said order of rejection of leave to defend application, the appellant preferred the first appeal which came to be decided by the learned Additional District Judge. In the said appeal also, the appellate court did not accept the plea of the appellant that the cheque in question was issued wrongly by him to one Mahinder Singh for the sum of ^30,000/- which has been misused. The learned ADJ, by a detailed order, upheld the order of the learned Civil Judge on 22.8.2012. Thus, there is a concurrent finding of fact that the appellant herein has not been able to make out any triable issue which would warrant the grant of leave to defend in summary suit.
^Feeling aggrieved, the appellant has filed the present regular second appeal. In this appeal (at page No.10), six questions of law have been formulated as substantial question of law. Out of these questions, none of the question is essentially a substantial question of law which would warrant interference by this court as all these questions which have been referred to by the appellant in the appeal are questions of fact. On oral submissions also, the learned counsel has not been able to make out any substantial question of law arising from the appeal. On the contrary, in support of his contention, the learned counsel for the appellant has sought to place reliance on the judgment titled Krishnan v^. Backiam & Anr.; 2007 (4) RCR (Civil) 511. The attention of the court has been drawn to paragraph 11 of the said judgment. I have gone through the said judgment and find that instead of supporting the case of the appellant, it clearly affirms that the second appeal is admissible only on a substantial question of law arising out ofthe pleadings of the parties.
In the instant case, it has already been observed that so far as the finding of fact by the first appellate court and the trial court is concerned, that is final.
On perusal of the two orders passed by the trial court and the appellate court, I do not find that the finding arrived at by the two courts below is perverse.
Since no substantial question of law is arising from the present regular second appeal, the same is dismissed. '
V.K. SHALI, J.
FEBRUARY 05, 2013 'AA'