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The Code Of Civil Procedure (Amendment) Act, 1956
The Limitation Act, 1963
N. Balakrishnan vs M. Krishnamurthy on 3 September, 1998
Ashwani Kumar Singh vs U.P. Public Service Commission ... on 14 July, 2003
C.S. Venkatasubramanian vs State Bank Of India on 21 November, 1996

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Delhi High Court
Ashu Jain vs Rakesh Gupta on 12 May, 2009

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P. 30/2009

Reserved on : 29th April, 2009

% Date of Decision : 12th May, 2009

ASHU JAIN ..... Petitioner Through: Mr. Deepak Dhingra, Advocate

versus

RAKESH GUPTA ..... Respondent Through: None.

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment? No.

2. To be referred to the Reporter or not? No.

3. Whether the judgment should be reported in the Digest? No.

JUDGMENT

MANMOHAN, J

1. Present civil revision petition has been filed challenging the order

dated 19th November, 2008 whereby Additional District Judge, Delhi

has dismissed petitioner-defendant‟s application for condonation of

delay in entering appearance in a recovery suit filed under Order

XXXVII CPC.

2. The relevant observations of trial court in the impugned order

are reproduced hereinbelow:

"5. The summons of the suit were admittedly served on the Defendant/Applicant on 19.08.2008 and therefore, she ought to have put in appearance within 10 days thereof i.e. latest by 29.08.2008, the record reveals that the Defendant/Applicant has not put in appearance even on 29.09.2008 as required under Order 37 CPC. She has only filed a vakalatnama which can not be considered an „appearance‟ under Order 37 CPC.

6. The Applicant has stated that as per experience in another litigation, she thought that nothing had to be done before 29.09.2008 and therefore, she approached/contacted her Advocate in the evening of C.R.P. No.30/2009 Page 1 of 7 28.09.2008. Her second plea is that she was not keeping well and therefore, could not contact her lawyer. The record reveals that the summons of the suit were received by her son Sh Anmol Jain and he received the summons after consulting his father, Sh. Ashish Jain over the telephone (as revealed by the report of the process server). It is thus clear that the „son‟ and „husband‟ of the Plaintiff were also aware of the present suit. Even if she was not keeping well, her son or husband could have contacted the advocate. Further, she herself also could have contacted the advocate over telephone because she is not new to the litigation or court procedures and has herself claimed that she has experience of some other litigation pending in the court.

7. Another interesting fact is that the present suit is under Order 37 CPC and the form of summons of suit under Order 37 CPC is different from the summons issued in the ordinary suits. The Defendant, her husband and son are not illiterate or uneducated. They would have gone through the contents/body of summons which does not specify any date for putting in appearance and if the Defendant could notice the next date of hearing on the top of the summons, she would have definitely gone through the contents of summons also. She, therefore, cannot take the stand/plea that she thought that nothing was to be done till the next date of hearing. Moreover, in the case of ordinary suits also, written statement is required to be filed within 30 days of service of summons. The defendant, in my considered view, has taken a false plea.

8. The defendant has claimed that she approached her lawyer in the evening of 28.09.2008. It is further stated in the application that her Advocate did not have time to prepare an application for „leave to defend‟. The present application has been drafted by the ld. Counsel only. Even if the Defendant was ignorant of the provisions of Order 37 CPC, the ld. Counsel was not. There was no question of preparing an application for „leave to defend‟ at this stage. This occasion would have arisen only after summons of judgement were served upon the Defendant. And that could be after putting in appearance by her as required under Order 37 CPC. In fact this explains why the vakalatnama was filed on 29.09.2008.

xxx xxx xxx

10. In the instant case, however the summons were issued for appearance. Neither the process server nor anybody else explained anything to the Defendant. The summons clearly required the Defendant to put in appearance within 10 days and the defendant ought to have and would have gone through the summons carefully as she already had experience of litigation in

C.R.P. No.30/2009 Page 2 of 7 the court. In the instant case, the explanation offered by the Defendant can not be condoned, only if such delay is not intentional and there are sufficient attending circumstances to bolster up the same. The explanation given by the Defendant is neither plausible nor reasonable and in fact an attempt has been made to justify that filing of Vakalatnama should be treated as entering appearance by the Defendant. In my considered view, the Defendant has failed to show any sufficient cause for the delay in putting in appearance. I am, therefore, not inclined to condone the delay.

The application is therefore, liable to be dismissed."

(emphasis supplied)

3. Learned counsel for petitioner stated that on 19th August, 2008,

petitioner received summons in the present suit bearing No.358/2008.

He stated that on top of the said summons, the next date of hearing

mentioned was 29th September, 2008 and without going through the

other contents of summons, petitioner keeping in view her past

experience of litigations, approached her counsel on 28th September,

2008 with instruction to defend her in the matter. It was only when the

counsel perused the summons that petitioner came to know that

respondent‟s suit was filed under Order XXXVII CPC and that she was

required by law to enter appearance within ten days. It was only on

29th September, 2008 that petitioner filed her Vakalatnama along with

an application for condonation of delay. The relevant averments in the

application for condonation of delay filed by petitioner are as under:

"1. That the plaintiff has filed the aforesaid suit which was served upon the defendant more than ten days back, however, the defendant took the summons to be the date of hearing and thus only approached the advocate on Sunday evening i.e. 28.09.2008. The advocate did not have time to prepare an application for leave to defend. The mistake of the defendant was totally inadvertent, since she went by her experience in another litigation and believe that nothing has to be done prior to the date mentioned on the summons. The summons mentioned C.R.P. No.30/2009 Page 3 of 7 the date 29.09.2008 and thus the mistake by the defendant.

2. That the defendant could not approach her lawyer since she has been keeping unwell and in her own innocence believe the date to be on 29.09.2008 and hence the present application."

(emphasis supplied)

4. Mr. Deepak Dhingra, learned counsel for petitioner has relied

upon the following judgments in support of his submission that the trial

court should have condoned the delay in entering appearance in the

present case:

A. HDFC v. Anil Laul reported in 85 (2000) DLT 343 wherein it

has been held as under:

"4. It is correct that under Order 37 of the Code, on receipt of summons in Form IV Appendix B the defendant is required to enter appearance within 10 days from the date of service of summons upon the defendant. But this Court can also not ignore the fact that when summons are received by a layman who has hardly appeared in Court, he can be misled by the date which is mentioned on the summons. A perusal of the summons shows that the party was informed that the matter will be taken up by the Court on 20th July, 1999. No mala fides have been imputed to the defendant nor any reason has been shown as to why the defendant who wants to contest the suit would not enter appearance in case he was aware that on not filing appearance within 10 days decree will be passed against him. At best it can be a case of casual approach of the defendant to the whole matter. However, it cannot be said that the mistake on the part of the defendant in not entering appearance within 10 days was not bona fide. It can also not be said that by writing the date of 20th July, 1999 on the summons when the defendants were informed that the matter will be listed before the Joint Registrar, the defendant was not misled. In my view, therefore, there is sufficient cause for not entering appearance within time and a good cause has been shown for the delay in entering appearance. I accordingly allow this application subject to payment of Rs. 1,000/- as costs and condone the delay in entering appearance by the defendant. No C.R.P. No.30/2009 Page 4 of 7 further orders are required to be passed on this application and the same stands disposed of."

B. Infrastructure Leasing and Financial Services Ltd. & Anr. v.

Santosh Baweja reported in 108(2003) DLT 546 wherein it has been

held as under:

"14. The Court cannot ignore the fact that the party was misled by the date mentioned in the summons with the fact that defendant is an old lady of 90 years of age and was sick. The reasons assigned by the defendant for the delay in entering appearance appear to be bona fide. The plea of the defendant is neither unreasonable nor improbable. The plaintiff was unable to show that the applicant had deliberately not acted in defending the suit and is thus liable to suffer the consequences. The defendant ought to be afforded an opportunity of hearing and participation in the suit. This is not a case where a decree has been passed against the defendant and that there is prayer for setting aside of the decree. The suit is at its initial stage.

15. There are series of decisions that have found favor with the Explanation given by the defendant. I draw support from the decision of this Court in the matter of V.N. Sood v. Dr. Gurbachan Singh, 1981 (2) All India Rent Control Journal 284, wherein this Court in similar circumstances condoned the delay. I also endorse the view taken by R.C. Lahoti, J. in the matter of Ashwani Kumar v. Lawrence Public School (supra). Each case is to be decided on its own peculiar facts and circumstances. The decisions relied upon by the plaintiff are distinguishable on facts."

C. Motilal Banarsidass Publishers Private Limited v. Standard

Chartered Bank reported in MANU/DE/0129/2007 wherein it has

been held as under:

"8. Adverting to the prayer of the defendant for condensation of delay in entering appearance, reliance was placed by learned Counsel for the defendant on a decision of the Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy MANU/SC/0573/1998, wherein relying upon its earlier decisions in Shakuntala Devi Jain v. Kuntal Kumari MANU/SC/0335/1968 and State of W.B. v. Administrator, Howrah Municipality MANU/SC/0534/1971, the Supreme Court Page 0135 C.R.P. No.30/2009 Page 5 of 7 held that the words 'sufficient cause' in Section 5 of the Limitation Act, 1963 should receive a liberal construction so as to advance substantial justice for 'a court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause.' It was further laid down that 'it must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the Explanation does not smack of mala fides or it is not put forth as part of dilatory strategy, the Court must show utmost consideration to the suitor."

D. Hector M. Mehta v. CRPB Capital Markets Ltd. & Ors.

reported in 98 (2002) DLT 127 wherein it has been held as under:

4. As per the provisions of Order XXXVII Rule 3 sub-rule 7 CPC, the Court may excuse the delay in entering appearance for sufficient cause shown by the defendant. The words "sufficient cause" though have not been defined but have been interpreted by the Supreme Court in a catena of judgments in reference to Section 5 of the Limitation Act. It is held in a number of judicial pronouncements that the words "sufficient cause" should be liberally construed so as to advance substantial justice. The Supreme Court in MANU/SC/0573/1998, N. Balakrishnan v. M. Krishnamurthy held that in the absence of anything showing malafides or deliberate delay as a dilatory tactic, Court should normally condone the delay. It has also been held that length of delay is not material, acceptability of the Explanation is the only criterion as sometimes delay of the shortest range may be uncontainable due to want of acceptable Explanation whereas in certain other cases, delay of a very long range can be condoned as the Explanation thereof is found satisfactory. It is held that there is no presumption that delay in approaching the Court is always deliberate."

(emphasis supplied)

5. Having heard the petitioner at length, I am of the view that

petitioner is neither an old lady nor is she a part of a state organization.

In fact, the admitted position is that petitioner has experience of

litigation. Consequently, in my view, a person who has experience of

litigation cannot claim to be a layman and further cannot claim that she

did not read the entire summons. Petitioner in the present case has

C.R.P. No.30/2009 Page 6 of 7 herself filed a copy of summons received by her which categorically

states as follows:

".....You are hereby summoned to cause an appearance to be entered for you, within ten days from the service hereof in default where of the plaintiff will be entitled, after the expiration of the said period of ten days to obtain a decree for any sum not exceeding the sum of Rs. 11,07,397.34/- and the sum of Rs.11,07,397.34/-for costs together with such interest, if any as the court may order.

If you cause an appearance to be entered for you, the plaintiff will thereafter serve upon you a summons for judgement at the hearing of which you will be entitled to move the court for leave to defend the suit." (emphasis supplied)

6. Undoubtedly, the expression „sufficient cause‟ has to receive a

liberal construction, but keeping in view the aforesaid summons as well

as her experience and the observations of trial Court, I am of the view

that ends of justice would be met if petitioner is directed to deposit the

principal amount with the Registry of this Court within a period of

twelve weeks from today.

7. In case, petitioner deposits the aforesaid amount within the

stipulated period, there shall be a stay of execution proceedings, if any,

filed by respondent-plaintiff by virtue of judgment/decree dated 19th

November, 2008 passed in Suit No. 358/2008. It is made clear that in

case the aforesaid amount is not deposited within the stipulated period,

present petition will liable to be dismissed on this account alone. Issue

notice to respondent, returnable for 9th November, 2009.

MANMOHAN, J

MAY 12, 2009

js

C.R.P. No.30/2009 Page 7 of 7