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Showing contexts for: CPC 1908 in Sh. Ram Mohan Gupta vs Sh. Kuldeep Chand on 3 April, 2018Matching Fragments
4. A perusal of the ordersheets of the present suit reveals that upon filing of the present suit, the summons as prescribed under Form IV, Appendix B, Schedule 1 of CPC were ordered to be issued qua the defendant, by the Ld. Predecessor Judge, on 06.06.2017. The said summons were served upon the defendant on 12.07.2017. Upon such service, the defendant had filed his appearance under Order XXXVII Rule 2(3) of CPC, 1908, and an application for condonation of delay in filing of the said appearance, under Order XXXVII Rule 3(7) of CPC, 1908, on 30.08.2017.
5. I had heard Sh. Vinod Kumar Goyal, Ld. Advocate for the plaintiff visavis the aforesaid appearance and application of the defendant, on 20.03.2018. On that day, none had appeared on behalf of the defendant.
6. On 20.03.2018, the Ld. Advocate for the plaintiff had submitted that the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 qua condonation of delay in filing of appearance Ram Mohan Gupta v Kuldeep Chand Page no.3 of 6 under Order XXXVII Rule 2(3) of CPC, 1908 should be dismissed by this Court because the only ground pleaded in the said application qua the delay in filing of the appearance under Order XXXVII Rule 2(3) of CPC, 1908, is 'ignorance of law' of the defendant and because the intent of the defendant is to delay repayment of friendly loan of Rs.1,00,000/ to the plaintiff. Also, the Ld. Advocate for the plaintiff had submitted that once the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 is dismissed by this Court, the present suit should be decreed in favour of the plaintiff and against the defendant, in view of the specific mandate of Order XXXVII, Rule 2(3) of CPC, 1908.
7. After perusing the record of the Court file and considering the submissions made by the Ld. Advocate for the plaintiff on 20.03.2018, I find that the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 qua condonation of delay in filing of appearance under Order XXXVII Rule 2(3) of CPC, 1908, is liable to be dismissed because the only ground pleaded in the said application is 'ignorance of law' of the defendant, which is untenable in law. Further, I find that even if the said application were to be allowed by this Court, no benefit would accrue to the defendant because the appearance filed by the defendant under Order XXXVII Rule 2(3) of CPC, 1908, was not filed by the defendant, as per the provisions of Order XXXVII of CPC, 1908. In this regard, it is noteworthy that the appearance filed by the defendant under Order XXXVII Rule 2(3) of CPC, 1908, does not bear the address of the defendant, as warranted by Order XXXVII Rule 3(1) of CPC, 1908. Also, it is noteworthy that before filing of the said appearance, the defendant Ram Mohan Gupta v Kuldeep Chand Page no.4 of 6 had not given any notice of filing of the said appearance, to the Ld. Advocate for the plaintiff, as warranted by Order XXXVII Rule 3(3) of CPC, 1908.
8. In view of the foregoing reasons, the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 qua condonation of delay in filing of appearance under Order XXXVII Rule 2(3) of CPC, 1908, is dismissed and the appearance filed by the defendant under Order XXXVII Rule 2(3) of CPC, 1908, on 30.08.2017, is not accepted.
9. In Order XXXVII Rule 2(3) of CPC, 1908, it is stipulated that if in a suit filed under the provisions of Order XXXVII of CPC, 1908, the defendant does not enter his appearance, as per Order XXXVII Rule 3(1) and Rule 3(3) of CPC, 1908, then the defendant cannot be permitted to defend the suit and the allegations made in the plaint are to be deemed to have been admitted by the defendant. Keeping in view the specific mandate of Order XXXVII, Rule 2(3) of CPC, 1908, the fact that the present suit has been filed within the prescribed period of limitation by the plaintiff and the fact that the pleadings made in paragraph 11 of the plaint of the present suit qua the territorial jurisdiction of this Court to entertain this suit, have remained unrebutted by the defendant, the present suit is hereby decreed for a sum of Rs.1,00,000/ (Rupees One Lac Only) along with costs in favour of the plaintiff and against the defendant.