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2023 DIGILAW 1020 (RAJ)

Ghyaneswar Bhati v. Suresh Dhariwal

2023-05-04

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT 1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs: '(a) That the writ petition may kindly be allowed and the impugned order dated 14.02.2023 i.e. Annexure-P/4 may kindly be quashed and set aside; and (b) By an appropriate writ order or direction, the application filed by the petitioner may kindly be allowed as prayed for in the interest of justice; (c) Any other writ, direction or order which is deemed to be just and proper in the circumstances of this case may kindly be passed in favour of the petitioner. (d) Costs of the writ petition may kindly be awarded in favour of petitioner.' 2. As per the pleaded facts, the respondent-plaintiff filed a suit, before the learned District Judge, Jodhpur Metropolitan, under Order 37 Rule 2 of the Code of Civil Procedure (CPC) for recovery of a sum of Rs.30,69,918/-. The learned Trial Court issued summons on 17.08.2022 to the petitioner-defendant for his appearance before the Court. 2.1 However, the petitioner-defendant could not appear before the learned trial court in time, as the summons were received (taamil) by his daughter on 01.09.2022. Thereafter, the petitioner defendant filed an application under Section 151 CPC for condonation of delay in putting his appearance before the Court, in pursuance of the summons order. 2.2 The learned trial court, however, vide the impugned order dated 14.02.2023, rejected the said application on the ground that the petitioner-defendant had failed to appear before the Court in time, as required under Order 37 Rule 2/3 CPC, and for the said delay, no justifiable reason was given by the petitioner. Thus, aggrieved by the said impugned order, the present petition has been preferred, claiming the afore-quoted reliefs. 3. Learned counsel for petitioner-defendant submitted that the summons order was not received by the petitioner-defendant, instead the same was received by his daughter on 01.09.2022. Learned counsel gave further reasons for non-appearance of the petitioner-defendant before the learned trial court; firstly, that the petitioner-defendant was out of station during that period in connection with his business and; secondly, he was busy in taking care of his 80 years old mother, who was in poor health, which was the main reason for the delay in appearance. Learned counsel gave further reasons for non-appearance of the petitioner-defendant before the learned trial court; firstly, that the petitioner-defendant was out of station during that period in connection with his business and; secondly, he was busy in taking care of his 80 years old mother, who was in poor health, which was the main reason for the delay in appearance. 3.1 It was further submitted that the petitioner-defendant made his appearance before the learned trial court on 21.09.2022 i.e. after a delay of 10 days only. 3.2 It was also submitted that the respondent-plaintiff had filed the suit for recovery of a sum of Rs. 30,69,918/- against the petitioner-defendant, and thus, in the interest of justice and according to the principle of equity, both the parties ought to be given an adequate opportunity of being heard. It was asserted that there were legit reasons, which caused the delay in making appearance before the learned trial court, in a time bound manner. 4. On the other hand, the learned counsel for respondentplaintiff, while vehemently opposing the aforesaid submissions made on behalf of the petitioner-defendant, submitted that the learned trial court issued summons on 17.08.2022, which were received by the petitioner-defendant's daughter on 01.09.2022; however, despite the same, instead of appearing within 10 days as per the provisions of Order 37 Rule 3 CPC, the petitionerdefendant did not appear before the learned trial court in time, and it was only after a delay of 20 days i.e. on 21.09.2022, that the petitioner-defendant appeared before the learned trial court. 4.1 It was asserted that on the date fixed by the learned trial court, since the concerned Court Clerk did not place summons served upon the petitioner-defendant in the Court file, therefore, for want of the service of summons, the matter was being adjourned on 28.09.2022 and 15.10.2022; after placing of the served summons in the Court file on 20.10.2022, it was argued that the petitioner-defendant did not put in his appearance within the prescribed period of 10 days. In support of his submission, learned counsel relied upon the judgment rendered by a Coordinate Bench of this Hon'ble Court at Jaipur Bench in the case of Mohanlal & Co. and Anr. v. Kota Textiles & Anr. (Civil Revision petition No. 82/2006, decided on 22.11.2006). In support of his submission, learned counsel relied upon the judgment rendered by a Coordinate Bench of this Hon'ble Court at Jaipur Bench in the case of Mohanlal & Co. and Anr. v. Kota Textiles & Anr. (Civil Revision petition No. 82/2006, decided on 22.11.2006). 4.2 It was also submitted that the petitioner-defendant malafidely with an intent to delay and prolong the proceedings unnecessarily, did not appear before the learned trial court in a timely manner. 4.3. It was further submitted that the petitioner-defendant could not state any justifiable reason, which prevented him from making his appearance before the learned trial court. It was also submitted that had there been any truth in the reasons furnished by the petitioner-defendant for the delay, instead of presenting the application for condonation of delay on 20.10.2022, he would have preferred the same on 21.09.2022 itself. The application so preferred under Section 151 CPC, thus, did not merit acceptance, and the same has rightly been rejected vide the impugned order. 4.4 It was also submitted that the contention of the petitioner-defendant that no prejudice would be caused to the respondent-plaintiff, if the application is allowed, is completely baseless, as the petitioner-defendant received the due amount through cheques, but the same was not repaid by him to the respondent plaintiff, which is causing serious prejudice and loss to the respondent-plaintiff, coupled with loss of interest on the amount in question. 5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgment cited at the bar. 6. This Court observes that the petitioner-defendant owed a sum of Rs. 30,69,918/- to the respondent-plaintiff and to recover the same, a suit under Order 37 Rule 2 of CPC was instituted by the respondent-plaintiff. Thereafter, summons were issued to the petitioner-defendant; however, the delay caused in putting appearance before the learned trial court was only on the part of the petitioner-defendant, and thus, the impugned order passed by the learned trial court in rejecting the application filed by the petitioner-defendant, was perfectly justified in law. 7. This Court further observes that the petitioner-defendant belatedly, after a period of 20 days, made his appearance before the Court and presented the application for condonation of delay in making such appearance before the leaned trial court, after almost a month. 7. This Court further observes that the petitioner-defendant belatedly, after a period of 20 days, made his appearance before the Court and presented the application for condonation of delay in making such appearance before the leaned trial court, after almost a month. It is further observed that the learned trial court rejected the application as the same was not maintainable according to the provisions of the Order 37 of CPC. 8. The provisions of Order 37 Rule 3 of CPC clearly provide for the defendant to make his appearance before the Court, within a period of 10 days, after service of the summons. For ready reference, the said provision of law is reproduced as hereunder: '3. Procedure for the appearance of defendant- (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 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. (2) Unless otherwise order, all summonses, notices and other judicial processes, required to be served on the defendant, shall deemed to have been duly served on him if they are left at the address given by him for such service.' 9. This Court further observes that the very objective of the summary procedure under the CPC is to avoid unnecessary delay, in the litigation process, by the defendant in the class of cases, where speedy disposal is desirable, so as to prevent any monetary loss to the concerned party. 10. Thus, in view of the above and looking into the factual matrix of the present case, this Court does not find any legal infirmity in the impugned order passed by the learned trial court, so as to warrant any interference therein. 11. Consequently, the present writ petition is dismissed. All pending applications stand disposed of.