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2007 DIGILAW 1066 (DEL)

J. K. BANSAL v. BHUSHAN STEEL AND STRIPS LTD

2007-05-18

A.K.SIKRI, ARUNA SURESH

body2007
( 1 ) THE respondent herein filed the suit for recovery under Order 37 Civil procedure Code on the original side of this Court. As per the record, the appellant could not be served by ordinary process and, therefore, substituted service through publication was ordered. Since no appearance was filed inspite of this service, the suit was decreed. Challenging this judgment and decree, the present appeal is filed and the ground taken is that the appellant was not served and was not aware of the decree. ( 2 ) THERE is a delay of 563 days in filing the appeal. The appellant filed the application under Order 37 Rule 4 CPC on the ground that there was no service for setting aside the said decree. This application was dismissed by the learned Single Judge vide order date 1. 3. 2006 and the said order is reported as Bhushan Steel and Strips Ltd. v. Shri Jai Kishan Basal, 2006 III AD (Delhi) 489. ( 3 ) WE have gone through the said other dated 1. 3. 2006. The order would reveal that the plea taken by the appellant was that the address of the appellant given in the plaint i. e. 460, Mundka Village, Main Rohtak Road, new Delhi, was a previous address of the appellant and that the appellant left that address some time in the year 2002. This plea of the appellant was held to be false and while dismissing the application, the Court observed as under: "the submissions made by the counsel for the parties clearly indicate that those made by the defendant are without any foundation. The plaintiff has clearly demonstrated that the address in the plaint is the address of the defendant even after 2002 inasmuch as the affidavits filed in 2005 by the defendant give the same address. The writ petition filed by the defendant in 2004 as well as the purported complaint filed by the defendant in 2004 also give the same address, i. e. , 460, Mundka Village, main Rohtak Road, New Delhi. Therefore, the very foundation of the application for setting aside the decree is non-existent. The writ petition filed by the defendant in 2004 as well as the purported complaint filed by the defendant in 2004 also give the same address, i. e. , 460, Mundka Village, main Rohtak Road, New Delhi. Therefore, the very foundation of the application for setting aside the decree is non-existent. " ( 4 ) THE reason on the basis of which the appellant seeks condonation of delay is the same as was taken in the application for setting aside the ex-parte decree namely the appellant was not served and, therefore, he could not be aware of the passing of the impugned judgment and decree. This is the ground taken for challenging the impugned judgment and decree also. This is not permissible as this course of action is not as per the judgment of the Supreme Court in the case of Bhanu Kumar Jain v. Archana Kumar and Another, (2005) 1 SCC 787 . ( 5 ) NO doubt, dismissal of the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree would not imply that the appeal against the ex-parte decree is not maintainable. However, at the same time, it is not open to the appellant to reagitate the correctness of the order passed while dismissing the application under Order 37 Rule 4 CPC in the appeal on the same ground which was taken in the said application. The Court in the aforesaid case observed as under on this aspect of the matter. "it is true that the suit was not directed to be heard ex-parte against respondent 2 herein but it remains undisputed that both the respondents filed application for setting aside the ex-parte decree before the learned trial Judge, preferred appeal against the judgment dismissing the same as also filed a revision application against the order dated 31. 10. 1985 setting the suit for ex-parte hearing. The said applications and appeal had been dismissed. Even a special leave petition filed was dismissed as withdrawn. In that view of the matter it is not permissible for the respondents now to contend that it was open to Respondent 2 to reagitate the matter before the High Court. 10. 1985 setting the suit for ex-parte hearing. The said applications and appeal had been dismissed. Even a special leave petition filed was dismissed as withdrawn. In that view of the matter it is not permissible for the respondents now to contend that it was open to Respondent 2 to reagitate the matter before the High Court. The contention which has been raised by Respondent 2 before the High Court in the first appeal, furthermore, was not raised in the said application under Order 9 Rule 13 of the code and even in the miscellaneous petition and the revision application filed in the High Court. Such a question having not been raised, in our opinion, the respondents disentitled themselves from raising the said contention yet again before the High Court in the first appeal. " In view of the aforesaid, there is neither any ground for condonation of delay nor any merit in the appeal which is accordingly dismissed.