Sh. Prabhat vs Sh. Dharmapal

Valmiki J Mehta, J.—Counsel for the Appellant states that though the present Regular First Appeal seeks to challenge two orders, in reality it is only the second order by which the application under Order 37 Rule 4 CPC has been dismissed on 10.2.2011, which is actually and only under challenge in the present appeal. Accordingly, the appeal is treated as one challenging the order dated 10.2.2011.

The facts of the case are that the Respondent/Plaintiff filed a suit under Order 37 CPC for recovery on the ground that the Appellant/Defendant took a friendly loan of Rs. 7,80,000/- on 18.6.2007 for which a written note was made on a stamp paper of Rs. 50/- undertaking to return the amount by 20.7.2007. It was stated in the plaint by the Respondent/Plaintiff that the Appellant/Defendant for part repayment issued two cheques of Rs. 1,60,000/- and Rs. 40,000/- in favor of Plaintiff dated 27.1.2008 and 5.2.2008, which were dishonored on account of insufficient funds, leading to filing of the suit. The Appellant/Defendant entered appearance, however, when the summons of the judgment were served, no leave to defend application was filed and consequently the suit was decreed vide order dated 30.11.2010.

The Appellant/Defendant moved an application under Order 37 Rule 4 CPC challenging the passing of the decree on account of non-filing of leave to defend, and in which, the only averments made with respect to the merits read as under:

That there are so many ground on which the Defendant want to submit before the Hon''ble Court for leave to defend as the Plaintiff has not paid the amount of Rs. 7,80,000/- to the Defendant as well as the Plaintiff has illegally occupied the part of premises of the Defendant and the Defendant has filed a suit for possession which is pending the court of Sh. Sanjay Khanagwal, ACJ, KKD Courts, Delhi and the counter blast of if the Plaintiff has filed a present suit in question.

The trial Court by the impugned order dated 10.2.2011 has held that the Appellant/Defendant has failed to allege and show special circumstances for setting aside the judgment and decree dated 30.11.2010 and which was mandatory upon him in terms of Order 37 Rule 4 CPC in view of the judgment of the Supreme Court in the case reported as Rajni Kumar Vs. Suresh Kumar Malhotra and Another, .

I fully agree with the reasoning and conclusion of the impugned order dated 10.2.2011 inasmuch as the decision of Rajni Kumar (supra) makes it more than clear that an application under Order 37 Rule 4 CPC is not similar to an application under Order 9 Rule 13 CPC , and, in an application under Order 37 Rule 4 CPC , it is necessary for the Appellant/Defendant to plead facts which entitle him grant of leave to defend. Para 6 of the application under Order 37 Rule 4 CPC quoted above, does not show any ground to be made out for granting leave to defend.

I, therefore, do not find any illegality or perversity in the impugned order dated 10.2.2011 which calls for interference by this Court in appeal. Appeal is therefore dismissed, leaving the parties to bear their own costs.

C.M. No. 6124/2011 (stay) in RFA No. 178/2011

Since the main appeal is dismissed, no orders are required to be passed in this application which is disposed of as such.