RAJIV CHUGH Vs. GURPREET SINGH

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India assails order dated 01.05.2012 of the learned ADJ in M.No. 33/2012 in M.No. 51/2011 in Civil Suit No. 119 of 2010. The aforesaid Civil Suit was filed against the petitioner under Order 37 CPC. The petitioner had entered appearance and thereafter the plaintiff/respondent had filed summons for judgment which was duly served upon the petitioner. The petitioner/defendant, however, failed to file leave to defend application within time and consequently the suit was decreed against him on 7 th May 2011. Subsequently, the petitioner/defendant filed an application on 20.10.2011 under Order 37 Rule 4 CPC read with Order 9 Rule 13 and Section 151 CPC for setting aside the decree dated 07.05.2011. This application was listed for 5th December 2011 for reply and arguments when it was adjourned to 31st January 2012 because the copy of the said application was not supplied to the opposite counsel. On adjourned date i.e. on 31st January 2012, proxy counsel for the defendant/ petitioner sought adjournment and the matter was adjourned to 6th March 2012. On this date i.e. 6th March 2012, the petitioner/defendant's counsel sought adjournment which was allowed against cost and the case was adjourned to 23.04.2012. On 23.04.2012, none appeared for the defendant/petitioner and the cost was also not paid. Consequently, the aforesaid application dated 20.10.2011 was dismissed in default and for non-prosecution. Then the petitioner/defendant filed an application on 25th April 2012 seeking recalling of order of 23.04.2012. This application came to be dismissed vide the impugned order of 01.05.2012.

(2.) I have heard learned counsel for the petitioner and perused the record.

(3.) IN view of the mandatory provision of filing of leave to defend application within 10 days of summons of judgment, the plea of condonation of delay can only be entertained based on good and sufficient cause amounting to special circumstances. Under Order 37 Rule 4 CPC, it is trite that it is not enough for the defendant to show such circumstance which prevented him from applying leave to defend, he has also to show by affidavit or otherwise the facts which entitled him to defend the suit. To seek setting aside of the decree, he was required to show that there existed special circumstances which would connote that he was prevented from appearance on account of some reasonable circumstance beyond his control. 7. In view of the proceedings as noted above, the petitioner/defendant could not be said to have set out any special circumstance as contemplated under Order 37 Rule 4 CPC. 8. I am conscious of the fact that substantial rights of the parties needs to be given precedence over the procedural technicalities of the matter and that valuable contention should not be thrown away overboard merely on technical basis more so when the other party can be compensated by way of cost for the delay caused. However, having regard to the nature of the proceedings of Order 37 CPC, a valuable right accrues to the plaintiff in the event of defendant failing to file leave to defend within 10 days of service of summons for judgment unless he presents his case under the ambit of Rule 4 thereof. 9. In view of my above discussion, I do not see any infirmity or illegality in the impugned order of the ADJ which may call for any intervention by this Court under Article 227 of the Constitution of India. Hence the petition is hereby dismissed.