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IN THE HIGH COURT OF DELHI AT NEW DELHI
MANOJ KUMAR OHRI, J.
Zafar Badyari - Appellant
Versus
Sandeep Singh - Respondent
FAO No.269 Of 2022
Decided On : 19-04-2023
Delay - Condonation of Delay - Limitation Act - [Order 37 CPC, Section 104 CPC] - The court allowed the condonation of delay of 150 days in filing the appeal under the Limitation Act. The appeal was filed under Order 43 Rule 1 read with Section 104 CPC to impugn the order dismissing the application filed under Order 9 Rule 13 CPC to set aside an ex-parte decree. The court upheld the preliminary objection that the appeal filed under Order 43 Rule 1 does not countenance an appeal against the Order passed under Order 37 Rule 4 of CPC.
Fact of the Case:
The appellant sought condonation of delay of 150 days in filing the appeal. The appeal was filed to impugn the order dismissing the application to set aside an ex-parte decree under Order 37 CPC.
Finding of the Court:
The court allowed the condonation of delay but dismissed the appeal on the preliminary objection that the appeal filed under Order 43 Rule 1 does not countenance an appeal against the Order passed under Order 37 Rule 4 of CPC.
Issues: Condonation of delay, maintainability of the appeal under Order 43 Rule 1 against the Order passed under Order 37 Rule 4 of CPC.
Ratio Decidendi: The court upheld the preliminary objection that the appeal filed under Order 43 Rule 1 does not countenance an appeal against the Order passed under Order 37 Rule 4 of CPC.
Final Decision: The court allowed the condonation of delay but dismissed the appeal on the preliminary objection that the appeal filed under Order 43 Rule 1 does not countenance an appeal against the Order passed under Order 37 Rule 4 of CPC.
Certainly. Here are the key points derived from the provided legal document:
The appeal was filed under Order 43 Rule 1 of the Civil Procedure Code (CPC) and involved the challenge to an order dismissing an application filed under Order 37 Rule 4 of CPC to set aside an ex-parte decree (!) (!) .
The court permitted the condonation of delay of 150 days in filing the appeal under the Limitation Act, with the respondent not opposing this delay (!) (!) .
A preliminary objection was raised that an appeal under Order 43 Rule 1 CPC is not maintainable against an order passed under Order 37 Rule 4 CPC (!) (!) .
The court clarified that an appeal under Order 43 Rule 1 CPC does not have the statutory authority to challenge orders passed under Order 37 Rule 4 CPC, which specifically deals with setting aside ex-parte decrees in summary proceedings (!) .
The court emphasized that the provisions of Order 37 CPC are distinct from those of Order 9 Rule 13 CPC, and the procedure and appeals under these provisions are not interchangeable (!) .
The court highlighted that the purpose of Order 37 is to facilitate an expeditious trial and disposal of commercial suits, and its provisions, including Rule 4, are specific in their scope, particularly relating to setting aside decrees and granting leave to defend (!) (!) .
Based on the legal framework and the specific provisions, the court upheld the preliminary objection, ruling that the appeal was not maintainable against the order passed under Order 37 Rule 4 CPC, and therefore, dismissed the appeal (!) .
The appellant was advised that they could seek an appropriate remedy in accordance with law, but the current appeal was not sustainable under the existing legal provisions (!) .
The court did not consider the merits of the case but focused solely on the issue of maintainability of the appeal (!) .
Please let me know if you need further analysis or specific legal advice based on these points.
JUDGMENT :
(Manoj Kumar Ohri, J.) :—
CM APPL. 45911/2022 (Delay)
1. The present application has been filed under the Limitation Act on behalf of the appellant seeking condonation of delay of 150 days in filing the appeal.
2. Learned counsel for the respondent fairly does not oppose the prayer made in the present application.
3. In view of the above, the application is allowed and the delay of 150 days in filing the appeal is condoned.
4. The application is disposed of.
FAO 269/2022 & CM APPL. 45912/2022(stay)
5. By way of present appeal filed under Order 43 Rule 1 read with Section 104 CPC, the appellant/defendant seeks to impugn the order dated 10.02.2022 passed by the learned ADJ-09 (Central), Tis Hazari Courts, Delhi in M. No. 72/2022, dismissing the Appellant's application filed under Order 9 Rule 13 CPC to set aside an ex-parte decree dated 04.10.2021 passed by the court in a summary suit filed under Order 37 CPC.
6. The facts, as borne out from the records, are that the respondent/plaintiff had filed the underlying suit i.e. CS No. 461/2021 under Order 37 CPC seeking permanent & mandatory injunction as well as recovery of possession, license fees and damages of Rs. 13,30,000/-. In the suit, it was claimed that the suit property being a shop at the ground floor (excluding the mezzanine floor) was given to the appellant on license for 11 months @ Rs. 1,33,000/- per month, excluding other charges. The suit was filed based on the dishonoured cheques that had been tendered by the appellant to the respondent to pay off the arrears.
7. The impugned order records that summons in the suit were sent to the appellant and he was treated as served on 17.09.2021. The ex-parte decree was passed by the trial court taking recourse to Rule 6 of Order 37 upon the appellant's failure to enter appearance and file a leave to defend, under Rule 3 and 5 respectively, of Order 37 CPC. The Trial Court had returned a finding of service of process on the respondent.
8. Appellant filed an application for setting aside the ex-parte decree under Order 9 Rule 13 of CPC instead of Order 37 Rule 4, provisioned for in the CPC. The trial court however was not prejudiced because of this misnomer and for all purposes, as is evident from the impugned order, dealt with the same as one filed under Order 37 Rule 4 and adjudicated the same as such. The trial court has observed in the impugned order that the appellant failed to make out a case for “special circumstances”- which indicates that the trial court adjudicated the application on the principles applicable to Rule 4 of Order 37 and not under Order 9 Rule 13.
9. Mr. Aaditya Vijay Kumar, learned counsel for the respondent took a preliminary objection to the maintainability of the appeal. He submitted that the impugned order having been passed under Order 37 Rule 4 CPC is not appealable under Order 43 Rule 1 CPC.
10. Although learned counsel for the appellant sought to advance arguments on the merits of the case, however, considering that the maintainability itself has been called into question, this Court sets out to decide the issue of maintainability at the first instance as merits of the case is not a relevant consideration at this stage. Learned counsel for the appellant couldn't refer to any CPC provision under which the appeal would fall, however has contended that due to likeness of the two provisions, which essentially deal with power of the court to set aside an ex-parte decree, appeal may deemed to be maintainable against the order passed under Order 37 Rule 4 of CPC, since it is maintainable against an order passed under Order 9 Rule 13 of CPC.
11. This rudimentary parity being drawn to maintain the appeal when no provision has been provided for in the CPC is not even ingenuous for the court to appreciate the attempt. Appeal, which is a statutory right has to be explicitly provided for in a statute and can't be inferred or assumed for practical convenience.
12. Pertinently, Order 37 CPC relates to summary proce
The appeal filed under Order 43 Rule 1 does not countenance an appeal against the Order passed under Order 37 Rule 4 of CPC.
The main legal point established in the judgment is that appeal is a statutory right and must be explicitly provided for in a statute. The judgment also emphasizes the principles governing a suit und....
The court ruled that failure to serve summons for judgment invalidates an ex parte judgment, emphasizing the mandatory nature of procedural requirements under Order 37 of the CPC.
Setting aside of ex parte judgment and decree – Defendant is obliged to apply for leave to defend only after he has been served with summons for judgment.
No limitation under Article 137 for Order IX Rule 7 CPC; ex parte parties may participate in ongoing proceedings if good cause shown.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
Setting aside ex-parte decree – Real test for adjudication of a petition under Order IX Rule 13 CPC is whether litigant upon learning about ex-parte decree takes immediate steps in filing application....
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