ASHA DEVI Vs. SATISH KUMAR

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution has been filed assailing order dated 28.02.2012 whereby an application under Order 9 Rule 13 r/w section 151 CPC of the petitioner was dismissed by the learned Senior Civil Judge (SCJ)-cum-Rent Controller (RC), North, Delhi.

(2.) THE respondent had filed a suit against the petitioner for recovery of Rs.2,90,400/- along with pendentelite and future interest. The petitioner filed an application for leave to defend in the said suit. Since none appeared for the petitioner, her application was dismissed-in- default on 04.09.2008 and thereafter the suit was decreed against her on 15.09.2009.

(3.) THE scope and ambit of the provisions given under Order 9 Rule 13 CPC are entirely distinct and different than the provisions of Order 37 Rule 4 CPC. An application under Order 9 Rule 13 CPC will succeed on showing availability of sufficient cause for non-appearance of the defendant. It is not in every case that the absence of defence counsel would constitute sufficient cause for a litigant. On the other hand it is for the litigant to show that there was a sufficient cause for default in appearance of the counsel. Under Order 37 Rule 4 CPC, a defendant has to show not only the special circumstances which prevented him from appearing or from applying for leave to defend, but also the facts which would entitle him to leave to defend. Failure of the defendant to disclose such facts which would entitle him to defend the case, would not call for any interference but lead to rejection of his application. In the case of Rajni Kumar v. Suresh Kumar Malhotra, AIR 2003 SC 1322, the Apex Court also held that for seeking interference under Order 37 Rule 4 CPC, the defendant has to show not only the special circumstances which prevented him from appearing or applying for leave to defend, but also the facts which would entitle him for leave to defend.