Neutral Citation Number : 2023:DHC:2632

FAO 269/2022 Page 1 of 8

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO 269/2022

Reserved on: 03.03.2023

Pronounced on: 19.04.2023

IN THE MATTER OF:

ZAFAR BADYARI

..... Appellant

Through:

Mr.Sanjeev Narang, Advocate

versus

SANDEEP SINGH

..... Respondent

Through:

Mr.Aaditya Vijay Kumar and

Ms.Akshita Katoch, Advocates

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

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.

Digitally Signed

By:NIJAMUDDEEN ANSARI

Signing Date:19.04.2023

16:21:43

Neutral Citation Number : 2023:DHC:2632

FAO 269/2022 Page 2 of 8

FAO 269/2022 & CM APPL. 45912/2022(stay)

1. 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.

2. 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.

3. 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.

4. 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

Digitally Signed

By:NIJAMUDDEEN ANSARI

Signing Date:19.04.2023

16:21:43

Neutral Citation Number : 2023:DHC:2632

FAO 269/2022 Page 3 of 8

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.

5. 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.