GYAN SINGH Vs. DURGA PRATAP SINGH

JUDGEMENT

(1.) The challenge by means of this petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is to the impugned order of the court below dated 05.2.2014 which has dismissed an application filed by the petitioner/defendant under Order 37 Rule 4 CPC for setting aside the judgment and decree dated 12.2.2013, which was passed on account of not filing of the application for leave to defend by the petitioner/defendant.

(2.) The case of the petitioner/defendant is that his counsel allegedly got mixed up with the other side, and therefore, the leave to defend application was not filed. However, the impugned order notes that the case was in fact fixed subsequently for orders on 12.2.2013, but none appeared again for the defendant even though there was a new advocate who was appointed.

(3.) The court below notes that in an application under Order 37 Rule 4 CPC besides the aspect of non-service, petitioner must make out a case on merits in view of the judgment of the Supreme Court in the case of Rajni Kumar vs. Suresh Kumar Malhotra and Anr., 2003 AIR(SC) 1322 and that the petitioner/defendant has not made out any case on merits because the petitioner/defendant had executed a promissory note which was witnessed by one Sh.Ramesh, and Sh.Ramesh Kumar Singh whose support the petitioner/defendant was relying upon was of a different patronage.