SUKHBIR SINGH Vs. JITENDER SHARMA AND ANR.

JUDGEMENT

(1.) By way of present petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 12th February, 2007 passed by Additional District Judge, Delhi whereby applications under Order IX Rule 4 read with Section 151 and Section 5 of Limitation Act for condonation of delay were dismissed.

(2.) Brief facts relevant for the purpose of deciding the present petition are that the petitioner had filed a suit under Order XXXVII Civil Procedure Code for recovery of Rs.9,78,750/- from respondent. The summons of the suit were served upon the respondent and respondent entered appearance. Thereafter, summons for judgment were served upon respondent and respondent filed an application for leave to defend and the matter was pending before the trial court for arguments on an application for leave to defend on 30th January 2006, when the petitioner did not appear and the suit of the plaintiff was dismissed for want of prosecution. The petitioner's contention is that on 30th January 2006 when the matter was listed for arguments, the bar lawyers were on strike in the District Court and the lawyers as well as the litigants both were prevented by office bearers of bar association. As a consequence, the suit went unattended and when it was called up for hearing, the suit was dismissed. On 2nd February, 2006, the agitation was still continued. The petitioner however moved an application for restoration of the suit, written in his own handwriting, because the lawyers had prevented typists and other persons also from operating in the Court complex so typists or bar menders were not available. However, the trial court refused to accept this application as there was no court fee stamp on it. It is submitted that the petitioner had been attending the court religiously prior to that date, when the matter was fixed for arguments on leave to defend application on previous date, the plaintiff's counsel was available and it was defendant's counsel who was absent and the Court had adjourned the case to 30th January 2006 and on 30th January 2006 he could not appear for above circumstances. Regarding late filing of the subsequent application, an application under Section 5 of the Limitation Act was filed and the ground taken was that the applicant's wife had fallen ill and the applicant had to leave Delhi and go to his in-laws. The applicant also stated that father of the applicant had undergone angiography in February-March, 2006 and he was not in a position to appear in the Court during that period.

(3.) There is no denial of the fact that there is a delay of about six months in moving application by the petitioner for restoration of the suit, however, I consider that the present petition is to be allowed on different grounds. In this case a summary suit under Order XXXVII CPC was pending before the Court. The respondent had entered appearance and leave to defend was filed by the defendant. Thus, what was pending consideration before the Court was defendant's leave to defend application and the Court was to consider the facts as set out by the defendant in leave to defend and to see if the application for leave to defend was to be allowed or not. Order XXXVII Rule 6 (a) provides as to what is to be done at the hearing for such summons of judgment by the trial court. Order XXXVII Rule 6(a) is reproduced herein-below: