* THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 740/2012 & CM 11066-11067/2012

Date of Decision: 06.07.2012

RAJIV CHUGH …… Petitioners

Through: Mr. Amit Kumar Mishra, Advocate

Versus

GURPREET SINGH …… Respondent

Through: Nemo.

CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

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

CM(M)740/2012 Page 1 of 4
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. The way the case was conducted by the petitioner/defendant or
his counsel, as has been noted above, would apparently show that when
the defendant failed to file leave to defend application within time, the
Court necessarily passed decree against him on 07.05.2011. It was only
on 20.10.2011 i.e. after more than five months of the passing of the
decree, that the petitioner/defendant filed application under Order 37
Rule 4 read with Order 9 Rule 13 CPC. All the pleas which are taken by
petitioner/defendant regarding his business, ailment of his father were
vague and of routine type. No cause, much less sufficient, was set out
by him for not filing leave to defend application within time. Further,

CM(M)740/2012 Page 2 of 4
all the pleas taken attributing fault to his counsel are also vague and of
routine type taken in such cases. Not only that, on 20.10.2011 the case
was adjourned for 5th December 2011 when his counsel again requested
for adjournment and it was adjourned to 31.01.2012 when on this date
also a proxy counsel appeared for him and sought adjournment for 6th
March 2012. On 6th March 2012 as well, the adjournment was sought
for 23.04.2012. The cost of Rs.5,000/-which was imposed on 6th March
2012, was also never paid by him nor ever tendered. No reason was
even given as to the nonpayment of the cost. It was recorded by the
learned ADJ that even there was no willingness expressed to pay the
said cost.
4. Regarding plea of wrong noting of date on 6.3.2012 as
25.04.2012 instead of 23.04.2012, the learned ADJ has noted that the
diary maintained by the counsel did not substantiate his plea in this
regard. Having noticed the contents of the diary, the learned ADJ did
not believe its authenticity as also the explanation given by the
petitioner/defendant and his counsel for non appearance.
5. 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

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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.

M.L. MEHTA, J.
JULY 06 , 2012
awanish

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