HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition has been filed against order dated 28.08.2009 of the learned Additional District Judge-02, North-East, Delhi, whereby the order dated 17th April 2009 of Civil judge was set aside and leave to defend the suit on merits was granted to the petitioner subject to payment of cost of ` 2,000/- and on his depositing 50 per cent of the suit amount within six weeks.
2. The respondent/plaintiff had filed a suit against the petitioner/defendant under Order 37 CPC for recovery of `1,00,000/- on the basis of promissory note alleged to have been executed by the petitioner/defendant. The petitioner at that time was working with RAC battalion. Summons of summary suit were issued to him and was served upon him on 24.01.2008 after routing through his department. He caused appearance through his counsel on 01.02.2008. Vide judgment dated 17.07.2008, the suit was decreed observing that the appearance filed by the petitioner on 01.02.2008 being beyond the prescribed period of 10 days and there being no application for condonation of delay, the contents of the plaint are deemed to be admitted. Thereafter the petitioner filed an application under Order 37 Rule 4 CPC read with Section 151 CPC which was dismissed by the trial Court vide his order dated 17.04.2009.
3. In this application the contention of the petitioner was that he was served only on 24.01.2008 and that he made appearance within ten days on 01.02.2008. It was stated by him that the summons were given to the clerk of his army company where he was posted which was received by him only on 24.01.2008. The learned Trial Court did not believe this averment of the petitioner in the absence of any evidence produced on record and proceeded to record service upon him on 17.01.2008 through the clerk of his official company. Reiterating that the appearance was not filed within ten days, the Judgment passed on 17.07.2008 was not disturbed and consequently the application under Order 37 Rule 4 CPC read with Section 151 CPC was dismissed.
4. The petitioner carried the matter in appeal before the learned ADJ which set aside the impugned judgment and decree and also the order dated 17.04.2009 and also granted leave to defend to the petitioner subject to depositing 50% of the suit amount with the Trial Court within 6 weeks and on payment of some costs. While passing the order the learned ADJ reasoned as under:
“11.The law is settled on the issue that Order 37 Rule 2 CPC is appealable now in order to understand the diametric of Order 37 Rule 2 in a systematic manner. Rule 2 and Rule 4 are to be read in conjunctions. Rule 4 provides the remedy to the defendant when he afterwards appears and establishes special circumstances that court may set aside the decree and grant him leave to appear and defend the suit which would in a way affect the order passed in Order 37 Rule 2. The language used in Order 37 Rule 4 makes it abundantly clear that it will override the Order 37 Rule 2 and any order passed rejecting the application means having the feature of finality and affecting the valuable right of the party and determines right of the parties with regard to all or any of the matter in the controversy or suit. Rejection of the application itself means determination of the right of the parties with regard to the matter in controversy and the order practically determining the whole cause.
12.Under the provisions contained in Order 37 Rule 4 CPC, the defendant is obliged to satisfy the twin conditions, namely, he was prevented by sufficient cause from putting the appearance and obtain leave to defend the suit, and, he has a good, substantial and/or meritorious defence in the suit. Absence of any one of the two conditions would be sufficient to decline the prayer of the defendant under Order 37, Rule 4.
16.Without going into the merits of the contentions raised by the appellant, the delay of four days in entering into appearance is reasonable and has been explained sufficiently so as to the extend benefit of Order 37 Rule 4 and appellants are entitled to defend the suit on merits. The order dated 17.04.2009 passed by the Ld Civil Judge, Delhi, is set aside with cost of Rs.2,000/- and also depositing in the trial court 50% of the suit amount within six weeks. File be consigned to Record Room.”
5. From the above it can be noted that the summons in the present case were served upon the clerk of the company of the petitioner on 17.01.2008. According to the petitioner summons was routed through his department before it was delivered to him on 24.01.2008. The petitioner had entered his appearance on 01.02.2008. The plea that was taken by him that he was served on 24.01.2008 only, could not have been out-rightly discarded by the Court because of the fact that he was posted in Army and the summons are served to the army personnel not directly, but through the official channel. In any case, the delay if any was of only four days and could have been considered by the Court. The learned ADJ has given just and plausible reason while upsetting the findings of the learned trial court.
6. I do not see any infirmity or illegality in the impugned order of the learned ADJ, calling for intervention by this court under Article 227 of the Constitution. The petition has no merit and is hereby dismissed.
M.L. MEHTA, J.
JULY 04 , 2012 awanish