Sat Pal Singh vs Harjit Singh

Sat Pal, J.—In this case Respondent-Plaintiff filed a suit against Petitioner-Defendant under order 37 of the Code of Civil Procedure. Summons were served on the Petitioner-Defendant on 8.8.1990 and thereafter the Petitioner appeared before the learned trial court on 15.8.1990. Summons for judgment were delivered to the Defendant-Petitioner on 11.9.1990 and on 29.9.1990 the Petitioner filed an application under Order 37 Rule 3(5) seeking leave of the Court to defend the suit. Reply to this application was filed by the Plaintiff-Respondent on 29.10.1990. Thereafter, the case was fixed on 3.8.1992 and on that date the case was adjourned to 7.9.1992 for arguments on the application filed by the Petitioner seeking leave to defend the suit. On 7.9,1992 since none appeared on behalf of the Petitioner-Defendant, the application filed by the Petitioner under order 37 Rule 3(5) CPC seeking leave to defend the suit was dismissed in default and the case was adjourned to 26.9.1992 for documents and consideration. On 26.9.1992 the documents were filed by the Respondent-Plaintiff and arguments were heard and the case was adjourned to 28.9.1992 for orders. On 28.9.1992 the suit was decreed in favour of the Respondent-Plaintiff and against the Petitioner-Defendant.

On 10.10.1992 the Petitioner-Defendant filed an application under order 37 Rule 4 read with Section 151 CPC and order 9 Rule 13 CPC for setting aside the judgment and decree dated 28.9.1992 passed by the learned trial court. In this application, inter-alia, it was stated that the learned Counsel of the Petitioner-Defendant on 3.8.1992 had noted the next date of hearing as 10.10.1992 whereas according to court records the case was adjourned on that date to 7.9.1992. It was, therefore, contended that the absence of the learned Counsel of the Petitioner on 7.9.1992 was neither intentional nor deliberate. Notice of this application was issued to the Respondent-Plaintiff who filed the reply to this application. Thereafter issues were framed by the learned trial court and,--vide order dated 6.9.1995, the application filed by the Petitioner-Defendant for setting aside the judgment and decree dated 28.9.1992 was dismissed. Against the said order dated 6.9.1995, the present petition has been filed by the Petitioner-Defendant. Notice of this Petitioner was issued to the Respondent.

Mr. Ravi Kant, the learned Counsel appearing on behalf of the Petitioner submitted that once an application under order 37 Rule 3 has been filed by the Defendant seeking leave of the court to defend the suit, the said application can not be dismissed in default, even if the Defendant or his counsel is not present in the court when the case is fixed for arguments on this application. He submitted that the learned trial court has only to examine the averments made in this application to ascertain as to whether the facts stated in the application are sufficient to entitle the Defendant to defend the suit-He, therefore, contended that even in the absence of the Defendant or his counsel, the learned trial court ought to have applied his mind after examining the facts stated in the application and the application could not have been dismissed for non-prosecution. In support of this submission, the learned Counsel placed reliance on a judgment of this Court in Sushila Production Engineer Chandigarh and Ors. v. State Bank of India, Chandigarh 1989 (2) CLJ 683.

The learned Counsel further submitted that on 3.8.1992, the learned Counsel of the Petitioner noted in his diary the next date of hearing as 10.10.1992 though as per court records the case was adjourned to 7.9.1992. He, therefore, contended that his absence on 7.9.1992. was in the circumstances neither intentional nor deliberate and was rather due to wrong noting of the date in the diary of the counsel. He submitted that wrong noting of date in the diary of the counsel was sufficient cause and as such the application filed by the Petitioner-Defendant under order 9 Rule 13 CPC and order 37 Rule 4 read with Section 151 CPC should have been allowed by the learned trial court. In support of his submissions, the learned Counsel placed reliance on a Division Bench judgment of Delhi High Court in N.K. Private Ltd. v. Hotz Hotels (P) Ltd. ILR.1974 (l) Del 500 and a judgment of this Court in Sat Pal Maini v. Ram Ashra 1987 (2) CLJ 540.

Mr. Kanwaljit Singh, the learned Counsel appearing on behalf of the Respondent, however, submitted that though in the application filed for setting aside ex-parte judgment and decree, it was stated that on 3.8.1992, the learned Counsel of the Petitioner-Defendant has wrongly noted the next date of hearing as 10.10.1992 instead of 7.9.1992 but from the diary of the counsel produced before the learned trial court, it was found by the learned trial court that the case in question was also entered in the page of the diary dated 26.9.1992. He submitted that in view of this fact, it was observed by the learned trial court in the impugned order that in case the Applicant''s counsel had entered the date as 10.10.1992 then how the case was also entered on 26.9.1992. It was in these circumstances that the learned trial court came to the conclusion that no reliance could be placed on the diary of the learned Counsel. As regard the other contention of the learned Counsel of the Petitioner that the application seeking leave to defend the suit could not be dismissed in default, the learned Counsel of the Respondent submitted that there was no such requirement under order 37 Code of Civil Procedure. He, therefore contended that there was no merit in this petition.

I have given my thoughtful consideration to the averments made by the learned Counsel for the parties and have perused the records. The case as put by the learned Counsel of the Defendant is that on 3.,8! 1992, he had inadvertantly noted the next date of hearing as, 10.10.1992 instead of 7.9.1992. The learned Counsel himself has appeared as a witness and had produced the diary in the court. From the diary it was found by the learned trial court that the case in question was also entered in the page of the diary dated 26.9.1992. The learned Counsel of the Petitioner, however, could not explain as to how the case was entered in the page of the diary on 28.9.1992 when according to his own case he had noted the next date as 10.10.1992. It was in these circumstances that the learned trial court held that no reliance can be placed on such a diary. During the pedency of this case, the learned Counsel of the Petitioner submitted that the case entered in the diary dated 26.9.1992 was a criminal matter but the name of the parties of that criminal case were identical to that of the present case. On this submission the learned Counsel was directed to file an affidavit in support of this averment,--vide order dated 28.7.1997. In pursuance of this order, affidavit dated 27.11.1997 of the learned Counsel was filed but in the affidavit it was stated that the said criminal case was not fixed on that date. In view of these facts, I am of the opinion that the learned trial court was right in holding that no reliance could be placed on the diary, of the learned Counsel of the Petitioner-Defendant. The judgments in the case of Messrs N.K. Private Ltd. (supra) and in the case of Sat Pal Maini (supra) relied upon by the learned Counsel of the Petitioner are of no assistance to the Petitioner as in those cases there was no such finding that the diary of the learned Counsel could not be relied upon.

To appreciate the contention of the learned Counsel of the Petitioner that once an application under order 37 Rule 3(5) has been filed by the Defendant seeking leave of the court to defend the suit, the said application could not be dismissed in default, it will be appropriate to re-produce Rule 3(5) or Order 37 which reads as under:

Order 37 Rule 3:

(5)--The Defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit and leave to defend may be granted to him unconditidnally or upon such terms as may appears to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the Defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the Defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the Plaintiff is admitted by the Defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the Defendant in Court.

From the first proviso under Sub-rule (5) it is clear that leave to defend can not be refused unless the court is satisfied that the facts disclosed by the Defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the Defendant is frivolous or vexatious. Admittedly in the present case the Defendant had filed an application under Sub-rule (5) of Rule 3 under order 37. Since the application was on record, the learned trial court was required to examine this application to find out as to whether facts stated in the application indicate that he has a substantial defence to raise or the defence put up by the Defendant was frivolous or vexatious. For this purpose the presence of the Petitioner or his counsel was not necessary and as such the application filed by the Defendant seeking leave of the court to defend the suit, coult not be ignored by the learned trial court while passing the impugned judgment dated 28th September, 1992. From the judgment dated 28th September, 1992, I however find that the learned trial court has not referred to any fact disclosed by the Defendant in the application seeking leave of the court to defend the suit. In view of this, the impugned order passed by the learned trial court refusing to set aside the ex-parte judgment and decree dated 28th September, 1992 can not be legally sustained. In this connection reference may be made to the judgment of this Court in the case of M/s Sushila Production Engineer, Chandigarh (supra) wherein it was held that in a case filed under order 37 Code of Civil Procedure, the learned trial court was required to give a finding on the facts disclosed by the Defendants in their application seeking leave to defend the suit.

For the reasons recorded herein above, the petition is allowed and the impugned order dated 28th September, 1992 is set aside and the case is remanded to the learned trial court to pass the judgment afresh after examining the facts stated in the application filed by the Petitioner-Defendant under order 37, Rule 3(5) seeking leave of the court to defend the suit. It is, however, made clear that no further hearing will be given to the Petitioner-Defendant for this purpose as the absence of the Defendant and his counsel on 7th September, 1992 and 26th September, 1992 has not been held to be bona fide. Since the case has already been argued by the learned Counsel of the Plaintiff, he is also not required to address any further arguments and the learned trial court will only examine the application filed by the Petitioner-Defendant under order 37, Rule 3(5) as stated herein above. The parties are, however, left to bear their own costs.

Registry is directed to send a copy of this order to the learned trial court directly forthwith for compliance.