SAT PAL SINGH Vs. HARJIT SINGH

JUDGEMENT

(1.) IN this case respondent-plaintiff filed a suit against petitioner-defendant under Order 37 of the CPC. Summons were served on the petitioner-defendant on 8.8.1990 and thereafter the petitioner appeared before the learned trial court on 15.8.1990. Summons for judgment were delivered to the defendant-petitioner on 11.9.1990 and on 29.9.1990 the petitioner filed an application under Order 37 Rule 3(5) seeking leave of the Court to defend the suit. Reply to this application was filed by the plaintiff-respondent on 29.10.1990. Thereafter, the case was fixed on 3.8.1992 and on that date the case was adjourned to 7.9.1992 for arguments on the application filed by the petitioner seeking leave to defend the suit. On 7.9.1992 since none appeared on behalf of the petitioner-defendant, the application filed by the petitioner under Order 37 Rule 3(5) CPC seeking leave to defend the suit was dismissed in default and the case was adjourned to 26.9.1992 for documents and consideration. On 26.9.1992 the documents were filed by the respondent- plaintiff and arguments were heard and the case was adjourned to 28.9.1992 for orders. On 28.9.1992 the suit was decreed in favour of the respondent- plaintiff and against the petitioner-defendant.

(2.) ON 10.10.1992 the petitioner-defendant filed an application under Order 37 Rule 4 read with section 151 CPC and Order 9 Rule 13 CPC for setting aside the judgment and decree dated 28.9.1992 passed by the learned trial court. In this application, inter-alia, it was stated that the learned counsel of the petitioner-defendant on 3.8.1992 had noted the next date of hearing as 10.10.1992 whereas according to court records the case was adjourned on that date to 7.9.1992. It was, therefore, contended that the absence of the learned counsel of the petitioner on 7.9.1992 was neither intentional nor deliberate. Notice of this application was issued to the respondent-plaintiff who filed the reply to this application. Thereafter issues were framed by the learned trial court and vide order dated 6.9.1905, the application filed by the petitoner-defendant for setting aside the judgment and decree date 28.9.1992 was dismissed. Against the said order dated 6.9.1995, the present petition has been filed by the petitiner-defendant. Notice of this petition was issued to the respondent.

(3.) THE learned counsel further submitted that on 3.8.1992, the learned counsel of the petitioner noted in his diary the next date of hearing as 10.10.1992 though as per court records the case was adjourned to 7.9.1992. He, therefore, contended that his absence on 7.9.1992 was in the circumstances neither intentional nor deliberate and was rather due to wrong noting of the date in the diary of the counsel. He submitted that wrong noting of date in the diary of the counsel was sufficient cause and as such the application filed by the petitioner-defendant under Order 9 Rule 13 CPC and Order 37 Rule 4 read with Section 151 CPC should have been allowed by the learned trial court. In support of his submissions, the learned counsel placed reliance on a Division Bench judgment of Delhi High Court in M/s. N.K. Private Ltd. v. Hotz Hotels (P) Ltd., ILR (1974) I Delhi 500 and a judgment of this Court in Sat Pal Maini v. Ram Ashra, 1987(2) C.L.J. 540.