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HIGH COURT OF DELHI
C.R.P. 37/2019
NETRAPAL SINGH ..... Petitioner
Through: Ms Preeti Singh and Mr Shivam Jaiswal, Advocates.
Through
VIBHU BAKHRU, J CM Nos.35595/2019
JUDGMENT
1. Allowed, subject to all just exceptions. CM Nos.35594/2019
2. The petitioner has filed the present application praying for restoration of the Revision Petition bearing No. 37 of 2019, in compliance with order dated 25.07.2019 passed by the Supreme Court in Special Leave Petition bearing SLP (C) No. 8823 of 2019.
3. The above captioned Revision Petition was disposed of by an order dated 25.03.2019, whereby the suit filed by the petitioner was also dismissed. The order dated 25.03.2019 has been set aside by the Supreme Court and Revision Petition has been restored. In that view, 2019:DHC:3864 the prayer made in this application is superfluous as the Revision Petition is now required to be considered as directed.
4. The petitioner has filed the present Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (hereafter “CPC”) impugning an order dated 05.12.2018 passed by the learned ADJ in Summary Suit (numbered as Civil Suit 192 of 2018), whereby the respondents have been granted an unconditional Leave to Defend.
5. The petitioner is engaged in the whole sale business of grocery items. Respondent no.1 is a colonizer and respondent no.2 is running a canteen at IIT, New Delhi. The petitioner alleges that respondent no.2 and the petitioner had strong relations since 2005 and respondent no.1 approached the plaintiff (the petitioner herein) for financial help for business investment. The plaintiff lent an amount of ₹10,00,000/- to the respondents and the said amount was given in cash on 01.08.2013. The respondents did not repay the said amount. Finally, on 01.08.2013, the respondents gave a cheque of the said amount which, on presentation, was dishonoured vide a return memo dated 03.02.2018.
6. Thereafter, the petitioner filed a suit for recovery of ₹10,00,000/-, along with interest against the respondents under Order XXXVII CPC.
7. The abovementioned suit, bearing CS No. 192/2018, captioned “Netrapal Singh v. Ravinder Kumar Salyani”, was listed before the learned ADJ, (South District), Saket Court Complex. The respondents, in response to the abovementioned summary suit, filed a reply to the application filed by the plaintiff under Order XXXVII Rule 3(4) CPC for “summons for judgment”, instead of an application under Order XXXVII Rule 5 of CPC for leave to defend.
8. By the order dated 05.12.2018, the learned ADJ held that the abovementioned discrepancy can be ignored, and the reply filed on the behalf of the respondents can be treated as a leave for defend in the interest of justice. The Court further held that “it transpires from the application filed by the defendants that defendants have not only been able to raise any defence but have also been able to cast a serious doubt on the plaintiff’s case in the suit.” Accordingly, the Court granted the respondents an unconditional leave to defend.
9. Aggrieved by the order dated 05.12.2018, the petitioner filed the above captioned Revision Petition. The said petition was disposed of by an order dated 25.03.2019, wherein this Court held that since the summary suit pending before the ADJ was itself barred by limitation, there is no merit in the revision petition. As a result, this Court also dismissed Civil Suit bearing No. 192/2018 pending before the ADJ.
10. Aggrieved by the order dated 25.03.2019, the petitioner filed a Special Leave Petition bearing SLP (C) No. 8823 of 2019, which later got converted into a Civil Appeal bearing Civil Appeal No. 5852 of
2019.
11. The Supreme Court, vide its judgment dated 25.07.2019, held that the scope of the revision petition before the High Court was limited and the matter ought to have been confined to the issue whether the leave to defend was rightly granted or not. The Supreme Court set aside the order dated 25.03.2019 passed by this Court and issued directions to restore the Revision Petition before the High Court, with the direction to dispose of the same in accordance with the law.
12. The learned counsel appearing for the petitioner contended that learned Trial Court had grossly erred in treating the reply filed by the respondents as an application for leave to defend under Order XXXVII Rule 3(5) CPC. She submitted that no prayer had been made for such leave and, therefore, the impugned order dated 05.12.2018 is wholly without jurisdiction. She submitted that it was not the case of the respondents (defendants in the suit) that their reply be treated as an application for leave to defend. She stated that the respondents in the said reply had specifically stated that grant of leave to contest defend is unfair or unreasonable.
13. The contentions advanced on behalf of the petitioner are not persuasive.
14. The learned Trial Court had, by an order dated 20.03.2018, directed that summons be issued to the defendants, returnable on 03.06.2018. The said summons was received by the respondents (defendants in the suit) on 27.03.2018. Thereafter, as required, the respondents entered appearance.
15. On 09.04.2018, the petitioner filed an application styled as an application under Order XXXVII Rule 3(4) CPC seeking summons for judgment on behalf of the plaintiff (the petitioner herein).
16. The respondents filed a reply captioned “reply filed on behalf of the defendants to the application under Order XXXVII Rule 3(4) CPC for summons for judgment”. A plain reading of the said reply indicates that the respondents had set out their defence to the claim made by the petitioner in the said suit. The respondents also entered a prayer that the suit may be dismissed with costs. The said reply was accompanied with an application seeking condonation of delay.
17. The matter was taken up by learned Trial Court on 04.06.2018. It is important to note that on the said date, the Court noted that the defendants were duly served with the “leave to defend application alongwith condonation of delay application”.
18. It also appears that at the relevant time, the learned counsel appearing for the petitioner stated that she did not wish to file any reply to the application for condonation of delay.
19. It does appear from the above that at that stage, the parties were treating the reply filed by the respondents as an application for leave to defend. This is also apparent from the fact that the respondents had filed an application for condonation of delay. Plainly, the question of delay would arise only if the reply was treated as an application for leave to defend under Order XXXVII Rule 3(5) CPC.
20. Order XXXVII Rule 3(4) CPC only requires the plaintiff to serve summons for judgment in the prescribed form. It does not contemplate filing any application or eliciting any response to such application.
21. As observed by the learned Trial Court, the respondents were required to file an application for leave to defend under Order XXXVII Rule 3(5) CPC instead of filing any reply filed to the application filed by the petitioner under Order XXXVII Rule 3(4) CPC. However, the contents of the reply filed by the respondents clearly set out the grounds of defence and indicate the respondents’ intention to contest the suit. The Trial Court held that the discrepancy in not filing an application styled as “leave to defend” could be ignored in the interest of justice and the reply could be treated as an application for leave to defend.
22. This Court finds no infirmity with the aforesaid view. It is relevant to bear in mind the object of prescribing the procedure for seeking leave to defend under Order XXXVII Rule 3(5) CPC. The rationale for evolving such a procedure, requiring the defendant to file a leave to defend, is to enable the Court to evaluate whether there exist any triable issue warranting the suit to be set down for trial. In the present case, the reply filed by the respondents had clearly set out the grounds of defence.
23. It must be necessary to bear in mind that the rules of procedure are meant to aid the delivery of justice and a minor infraction of such rules of procedure ought not to visit the concerned party with consequences which substantially defeat the ends of justice. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon: AIR 1969 SC 1267, the Supreme Court had set out the principle in the following words: “Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure.”
24. In Kanhaiyalal Patni v. Awantika Pustak Bhandar: AIR 1990 MP 207, the Madhya Pradesh High Court considered a matter where the petitioner’s contention was that the written submission filed on behalf of the non-applicants (the respondents), in reply to the summons of judgment served upon them by the petitioner, cannot be construed as an application for leave to defend. The court, while rejecting the petitioner’s contention, observed that triable issues had been raised in the said written submission and held that procedure is the hand-maid of justice and should not be construed so as to defeat it. The Court further held that care must always be taken to ensure that the technicalities are not made the stumbling blocks on the road to justice.
25. It is also material to note that the petitioner does not contest the Trial Court’s conclusion that the respondents have a reasonable defence.
26. In view of the above, this Court finds no ground to interfere with the impugned order. The petition is, accordingly, dismissed.
VIBHU BAKHRU, J AUGUST 07, 2019 MK/RK