LAWS(DLH)-2011-3-569

SH. PRABHAT Vs. SH. DHARMAPAL

Decided On March 29, 2011
Sh. Prabhat Appellant
V/S
Sh. Dharmapal Respondents

JUDGEMENT

(1.) 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 Code of Civil Procedure 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.

(2.) THE facts of the case are that the Respondent/Plaintiff filed a suit under Order 37 Code of Civil Procedure 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.

(3.) 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 Code of Civil Procedure in view of the judgment of the Supreme Court in the case reported as Rajni Kumar v. Suresh Malhotra : AIR 2003 SC 1322.