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2000 DIGILAW 446 (RAJ)

DHL Worldwide Express v. M/s. Madhur Exports

2000-04-11

ARUN MADAN

body2000
JUDGMENT 1. - The petitioner-Company has come up by way of this revision petition challenging the order dated 20.12.1999 passed by the learned Additional Civil Judge (Senior Division) and Additional Chief Judicial Magistrate No. 5, Jaipur City, in Civil Suit No. 40/99 whereby, the said trial Court allowed the defendant's application by recording their appearance as per provisions of O. 37 R. 2 CPC. 2. The facts which are relevant for deciding the controversy between the parties briefly stated are that the plaintiff-petitioner had filed a suit u/O. 37 R. 2 CPC against the defendants-respondents for recovery of Rs. 25,232/-. It was contended in the plaint that there was a written agreement between the parties as per which on 22.6.1995, understanding was arrived at between the parties that the plaintiff would provide courier service to the defendants through which the goods handed over by the defendants to the plaintiffs will be transported either by airshipment or through other mode from one place to another and the defendants will pay the necessary charges of transportation as per the agreement. The petitioner kept on providing such service to the defendants to their satisfaction and the payments were made on the bills being presented and which were duly honoured. The correspondents continued between the parties from time to time by way of registered letters as well as postal service etc. by which the defendants were requested to make the payments of the bills which were withheld. On 23.9.1998 a notice was sent by the petitioner through their counsel wherein a sum of Rs. 18,886/- together with interest @ 24% p.a. w.e.f. 1.10.1997 was claimed but, since the defendant did not make the payment, suit was filed for recovery of the disputed amount against the defendant. Summons in this regard were issued upon the defendants for 25.10.1999. Thereafter, an application u/0. 37 R. 3 CPC was filed by the defendants on 7.10.1999 contending therein that he was out of India and returned back only on 13.9.1999, after that he stayed at Delhi and on 30.9.1999 for the first time, summons came to his knowledge and accordingly he filed his appearance within 10 days i.e. on 7.10.1999. The trial Court after hearing arguments advanced by the learned counsel for the parties as on 14.12.1999 passed the impugned order dated 20.12.1999 allowing the defendants' application dated 7.10.1999. Hence, this revision petition. 3. The trial Court after hearing arguments advanced by the learned counsel for the parties as on 14.12.1999 passed the impugned order dated 20.12.1999 allowing the defendants' application dated 7.10.1999. Hence, this revision petition. 3. During the course of hearing, learned counsel for the petitioner has vehemently contended that the learned trial Court has committed serious error of law and jurisdiction in passing the impugned order regarding appearance of the defendants within 10 days as required under the provisions of 0. 37 CPC. He has further contended that in support of his submission, the defendant has not filed any affidavit alongwith application seeking leave to defined the suit dated 7.10.1999 but, Fit appears from the order passed by the trial Court that the defendant had field some affidavit but copy of the affidavit has not been made available to the petitioner in rebuttal. In such circumstance, the order passed by the trial Court is not sustainable. It has further been contended that the findings recorded by the learned trial Court are based on conjectures and surmises and deserve to be set-aside. 4. I have heard learned counsel for the petitioner at length and also examined the findings recorded by the trial Court with reference to the legal position on the subject. 5. Prima facie, I am of the considered opinion that the trial Court has recorded very well reasoned finding by observing in the order that the defendants had returned to India from his trip to Eurpoe on 13.9.1999 and due to some urgent preoccupation he was confined to Delhi and thereafter came to Jaipur and hence he could not receive the summons sent by the Court directing his appearance. However, he received a copy of the summon on 30.9.1999 on which the date of appearance was indicated as 25.10.1999 by which he got the knowledge for the first time on 30.9.1999 and from the date of knowledge i.e. 30.9.1999 he in all fairness he had put his appearance within 10 days from service thereof. Hence, thereafter by way of application with the supporting affidavit the defendant sought leave of the Court to contest the suit. Hence, thereafter by way of application with the supporting affidavit the defendant sought leave of the Court to contest the suit. The aforesaid contention of the defendants were controverted by the plaintiff by filing reply contending therein that service of summon was effected on the defendant on 15.9.1999 itself and from the date of such service, since he had put his appearance within 10 days, leave to defend the suit should not have been permitted to him. In order to arrive at true appreciation with regard to the contention advanced by the learned counsel for the petitioner, it is necessary to discuss the provisions of 0.37 R. 3 CPC which envisages the procedure for appearance of defendant thus : "3. Procedure for the appearance of defendant.-(1) In a suit to which this Order applies, the plaintiff shall, together with the summons u/R. 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him." Sub-rule (5) of R. 3 of 0. 37 stipulates that : "(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just : Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious : Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court." 6. From the perusal of above rule, it is abundantly clear that Court has the discretion in appropriate cases on sufficient cause being shown by the defendant even to condone the delay on the part of the defendant in entering an appearance or even in applying for leave to defend the suit provided the defence is bona fide and a sufficient cause is shown by which the defendant was prevented by sufficient cause from filing his appearance or in applying for leave of the Court in appropriate cases. 7. In this case, the undisputed facts are that copy of summon was received by the defendant for the first time on 30.9.1999 on which the date 25.10.1999 was indicated as the date for appearance before the Court. The date of knowledge has thus to be construed w.e.f. 30.9.1999 and if reckoned from the said date the petitioner had filed his appearance within 10 days from its receipt. Consequently, the defendants as soon as became award, filed their appearance in the trial Court and sought the permission of the Court for filing the proper application in accordance with law as per requirements of 0. 37 R. 3(5) CPC. Hence, the contention of the learned counsel for the plaintiff that service of summons was effected on the defendant way back on 15.9.1999 and that he had not put his appearance within 10 days of its service i.e. by 25.10.1999 is wholly fallacious and contrary to the facts available on the record of the case. In my view, this finding of fact which has been recorded by the trial Court can neither be said to be perverse or suffers from any jurisdictional error or any illegality. The finding is just and proper and in conformity to the requirements of O. 37 R. 3 CPC. 8. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment of this Court in the matter of Karpal Singh v. Sardar Lakh Singh, 1980 WLN 577 , in which this Court had noted on facts that defendant who was misled by writing of "Tarikh Peshi", did not apply for leave within 10 days of service for entering appearance. It was observed by this Court that aforesaid constituted sufficient cause and District Judge exercised his jurisdiction illegally in declining to condone delay. It was observed by this Court that aforesaid constituted sufficient cause and District Judge exercised his jurisdiction illegally in declining to condone delay. In my view, the ratio of the said decision is not attracted to this case since the order under challenge before this Court would have occasioned a failure of justice if it allowed to stand and therefore, called for interference in exercise of its revisional jurisdiction. The position is altogether different in the instant case.As a result of above discussion, the revision petition being devoid of any merit is accordingly dismissed summarily.Revision dismissed. *******