Delhi District Court
Manmohan Singh vs Smt. Kaushar Chauhan on 18 January, 2022
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-001078-2019
RCA No. 31/19
Smt. Preetam Kaur
Through LR/Sons
1. Manmohan Singh
S/o Lt. Sh. Punjab Singh
R/o B-473, New Sanjay Amar Colony
Vishwas Nagar, Shahdara, Delhi-110032
2. Rajender Singh
S/o Lt. Sh. Punjab Singh
R/o B-475, New Sanjay Amar Colony
Vishwas Nagar, Shahdara, Delhi-110032
3. Kuldeep Singh
S/o Lt. Sh. Punjab Singh
R/o 120, G/F, Gali No.2
Sabha Pur, Anuvarat Vihar
Near Chawla Farm, Karawal Nagar
Delhi-110094
4. Daljeet Singh
S/o Lt. Sh. Punjab Singh
R/o C-2/317, Sonia Vihar
Second Pushta, Gali No.6
Delhi-110094
.....Appellant
Versus
Smt. Kaushar Chauhan
W/o Sh. Salim Chauhan
R/o B-474, J. J. Camp, New Sanjay Amar Colony
Vishwas Nagar, Shahdara, Delhi-110032
....Respondent
RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 1 of 8
Date of filing : 16.02.2019
Date of arguments : 12.01.2022
Date of judgment : 18.01.2022
JUDGMENT
1. The present appeal was taken up for hearing arguments and for disposal through physical as well as virtual hearing in pursuance of the directions issued by the Hon'ble High Court of Delhi.
2. This is an appeal under Order 43 Rule 1 read with Section 96 of Code of Civil Procedure against the order dated 14.01.2019 passed in civil suit No. 11054/2016 by Ld. ACJ-CCJ-ARC (Shahdara), Karkardooma Courts, Delhi (in short the impugned order), whereby in view the specific mandate of Order XXXVII, Rule 3 (6)
(a) of CPC, the decree for the sum of Rs.50,000/- was passed in favour of the plaintiff-therein/respondent-herein and against the defendant-therein/appellant-herein by the Ld. Trial Court. Vide the impugned order dt.14.01.2019, the plaintiff-therein/respondent-herein was also granted pendente lite and future interest @ 6% per annum as per Section 34 CPC and bank rate of interest.
3. The brief facts, as set out in the present appeal, are that the respondent-herein/plaintiff-therein filed a suit under order XXXVII of CPC for recovery of Rs.50,000/- against the appellant- herein/defendant-therein namely Smt. Preetam Kaur. In the said suit, the application u/s 151 CPC filed by the appellant-herein/defendant- therein for granting permission to file leave to defend was dismissed RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 2 of 8 vide order dated 04.12.2018 and thereafter, the Ld. Trial Court passed the impugned order dt.14.01.2019. The appellant has preferred the present appeal on the grounds among others that the Ld. Trial Court erred in giving the finding that the appellant has not received any single amount from the respondent-herein and the respondent-herein herself prepared two false and fabricated lkrarnama/agreement with the name, photograph and signature. One Ikrarnama was executed on 05.08.2014 shown with the appellant-herein/defendant-therein to sale the first floor of the Jhuggi No. B-474, J.J.Colony, New Sanjay Amar Colony, Vishwas Nagar, Shahdara, Delhi-32 for a sum of Rs.50,000/- and another second agreement was shown as executed with appellant- herein/defendant-therein on 21.02.2015 regarding one room of ground floor of the property mentioned above on the one side the respondent- herein said that the MOA dated 07.08.2009 is forged and fabricated but on the other side he admitted the said document in his evidence. The Ld. Trial Court did not consider the fact that the respondent- herein is illegally occupying the First floor of the Jhuggi No. B-474, J.J.Colony, New Sanjay Amar Colony, Vishwas Nagar, Shahdara, Delh-32. The present suit had to be contested on merit but the Ld. Trial Court decreed the suit u/o XXXVII CPC without considering the documents on records. The appellant is a very old aged lady and suffering from various old aged problems. The Ld. Trial Court even did not properly appreciate the documents and passed the impugned order dt.14.01.2019. The appellant has prayed to allow the present appeal by way of setting aside order / judgment dated 14.01.2019 and RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 3 of 8 to return the present case for re-trail.
4. The respondent has not filed reply to the appeal. However, the Ld. Counsel for the parties have filed written arguments. During the pendency of the present appeal, the appellant expired and vide order dt.23.12.2021, the application u/o 22 Rule 1 r/w/s 151 CPC was allowed and LRs Sh. Manmohan Singh, Rajender Singh, Kuldeep Singh and Daljeet Singh were brought on record.
5. I have heard Ld. Counsel for the parties and also carefully gone through the written arguments filed by the Ld. Counsel for the parties and impugned order / judgment as well as the materials on record.
6. Ld. LAC for the appellant argued that the suit u/o XXXVII CPC was filed before the Ld. Trial Court against the appellant Smt. Preetam Kaur, now deceased represented through her LRs/sons in this appeal. The summons for judgment was served upon the defendant- therein on 30.11.2016 and leave to defend was filed on 26.12.2016. The lady Ms. Preetam Kaur/defendant was 80 years and remained not well. The said lady was not given an opportunity to be heard by the Ld. Trial Court. The defendant-therein was not given an opportunity for arguments before the Ld. Trial Court. Ld. LAC for the LRs of deceased appellant further argued that the case may be remanded back to the Ld. Trial Court so that the arguments may be heard and the case before the Ld. Trial Court may be decided on merits.
RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 4 of 8
7. Ld. Counsel for the respondent argued that the impugned order dt.14.01.2019 of the Ld. Trial Court is correct and self speaking order. The defendant-therein did not bother to the legal notice served upon her. Leave to defendant was not filed in time prescribed as per the provisions of CPC. No certificate of medical treatment of lady was filed on record. Ld. Counsel for the respondent further argued that day to day explanation of the delay is to be filed. There is a delay of 10 months and 22 days. When the Ld. Trial Court directed in its order to issue warrants, then the appellant now deceased Preetam Kaur appeared before the Ld. Trial Court.
8. Perusal of the record reveals that Sh. Manmohan Singh, son of the defendant-therein firstly appeared before the Ld. Trial Court on 24.12.2016. Vide order dt.31.01.2017, Ld. Trial Court ordered to issue summons as prescribed under Form IVA, Appendix B, Schedule 1 of CPC qua the defendant-therein upon filing of the process fee etc. for 13.02.2017. The defendant-therein was served with the summons for judgment on 10.02.2017 and appeared in person on 13.02.2017. On 02.05.2017, the Ahlmad was directed to report whether any leave to defend application was filed by the defendant- therein and fixed the matter for 07.06.2017 on which date Ahlmad reported that no leave to defendant application has been filed. On 22.09.2017 also the Ahlmad reported that no leave to defendant application has been filed. Vide order dt.24.10.2017, the defendant- therein with Ld. LAC appeared and an application u/s 151 CPC for RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 5 of 8 granting permission to file leave to defend application was filed on behalf of the defendant. On 04.12.2017, an application u/o XXXVII Rule 3(5) r/w/s 151 CPC for grant of leave to defend was filed on behalf of the defendant and vide order dt. 06.02.2018 the reply to the said application u/o XXXVII Rule 3(5) was filed on 01.02.2018. On 04.12.2018, arguments on application u/s 151 CPC for grant of permission to file leave to defendant application was heard. Ld. Trial Court observed that defendant was served for summons for judgment on 10.02.2017 and defendant appeared in person in the court on 13.02.2017 and 02.05.2017 but no leave to defend was filed by the defendant and an application u/s 151 CPC was filed on 24.10.2017 by the defendant. No medical document of mental ailment of defendant had been filed along with the application nor day to day delay had been explained in filing the leave to defend from 21.02.2017 to 23.10.2017 by the defendant-therein, hence, the application u/s 151 CPC was dismissed. On 04.12.2018, final arguments were heard and thereafter the Ld. Trial Court passed the impugned order / judgment on 14.01.2019.
9. In view of the facts and circumstances of the case, oral arguments as well as written arguments of the Ld. Counsel for the parties, the records and also the impugned order/judgment, I am of the considered opinion that the defendant-therein was served with the summons for judgment on 10.02.2017 and appeared in person on 13.02.2017 but she could not file leave to defend within prescribed RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 6 of 8 time. Vide order dt.22.09.2017 of the Ld. Trial Court, the Ahlmad of the Ld. Trial Court reported that no leave to defend application had been filed. Therefore, the Ld. Trial Court heard the final arguments on the same i.e. 22.09.2017 and fixed the matter for clarification / judgment for 12.10.2017. The defendant-therein instead of moving leave to defend application, filed an application u/s 151 CPC for granting permission to file leave to defend, which was dismissed on 04.12.2018 by the Ld. Trial Court. The appellant had every right and opportunity to challenge the said dismissal order dt.04.12.2018 of the Ld. Trial Court as per law but the defendant-therein did not choose to do so. As per the ordersheet dt.04.12.2017 of the Ld. Trial Court, an application u/o XXXVII Rule 3 (5) r/w/s 151 CPC was filed for grant of leave to defend the suit on behalf of the defendant-therein. The appellant-herein/Smt. Preetam Kaur did not file medical documents to show her bona fide reason for not filing the leave to defend application within the prescribed period as per the relevant provisions of CPC. Even, the day to day delay has also not been explained in filing the leave to defend application from 21.02.2017 to 23.10.2017 when the defendant-therein (late Smt. Preetam Kaur) herself was appearing before the Ld. Trial Court. As per Order XXXVII Rule 6
(a), "At the hearing of such summons for judgment,--(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith." It was an inordinate delay in filing the leave to defend on behalf of the defendant-therein and it is clear from the RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 7 of 8 discussions made above that the defendant-therein did not bother to defend her case despite sufficient time after service of summons for judgment before the Ld. Trial Court and if the present appeal is allowed by allowing the inordinate delay in filing leave to defend application, the purpose of order XXXVII would become frustrated. Therefore, I do not find any infirmity or illegality in the impugned order / judgment dt. 14.01.2019 passed by the Ld. Trial Court. Accordingly, this appeal is devoid of any merits and the same is dismissed. No order as to costs. Trial Court record along with copy of this judgment be sent back. File of appeal be consigned to Record Room.
YASHWANT Digitally signed by
YASHWANT KUMAR
KUMAR Date: 2022.01.18 16:48:50
+05'30'
Announced through virtual hearing (YASHWANT KUMAR)
today on 18th day of January 2022 Principal District & Sessions Judge Shahdara, KKD Courts, Delhi RCT No. 31/19 Preetam Kaur vs. Kaushar Chauhan Page No. 8 of 8