C.R. No.4674 of 2003 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R. No.4674 of 2003 (O&M)
Date of Decision: 19.08.2009
Arun Kumar .....Petitioner
Versus
Prithvi Parashar ...Respondent
Present: Mr. Aman Bahri, Advocate
for the petitioner.
None for the respondent.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J. (ORAL)
1. The revision is against an order rejecting the plea made on
behalf of the defendant for condonation of delay in moving the
application for entering appearance. The suit admittedly had been filed
under the provisions of Order 37 CPC as a summary procedure and the
summons had been served on 17.03.1999. The defendant had not
entered appearance nor did he apply for a leave to defend. The Court did
not proceed under Order 37 Rule 3 CPC to treat the plaintiff’s claim as
admitted but proceeded to set the defendant ex parte and posted the case
on 02.06.1999. The application had been moved for setting aside the ex
parte order on the same day on 02.06.1999, but he filed an application
for condonation of delay under Order 38 Rule 3 (7) in entering
appearance nearly 1 ½ years later. The Court found that the summons
had been admittedly received and the contention that there was no valid
service was not correct. It also found that there was a delay of more than
C.R. No.4674 of 2003 (O&M) -2-
one and half years in applying to the Court for condoning the delay in
entering appearance and accordingly, dismissed his application.
2. Learned counsel appearing for the petitioner states that the
actual appearance had been made even on 02.06.1999 and the petition
for setting aside the ex parte order had also been made on the same day
on 02.06.1999 but only the application to condone the delay came to be
filed. According to him, direction for payment of costs would be
appropriate penalty that could be imposed on the defendant and denying
him a right to defend will be extremely harsh.
3. If there had been only an application for leave to defend and
the Court did not exercise it discretion, the contention of the learned
counsel would merit acceptance. From the records and from the
averments made by the counsel, I am able to find that there is till date
not even a petition moved for leave to defend the suit. The Court had
already found that there had been a valid service of summons. A suit
instituted in the year 1999 under the provisions of Order 37 CPC has
stood without disposal for nearly a decade by the pendency of one
application or the other at the instance of the defendant. It makes the
entire proceedings under Order 37 CPC a mockery and to allow the
defendant to proceed to trial even when he has not made out a ground for
grant of permission to defend will aggravate the problem for plaintiff all
the more.
4. There is no ground for interference with the order passed and
the civil revision is dismissed.
(K. KANNAN)
JUDGE
August 19, 2009
Pankaj*