ORAL ORDER

ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. In a summary suit challenging the ex-parte decree, the petitioner herein filed an appeal before the Principal District Judge, namely Commercial Appeal No.9 of 2024, which has been dismissed by the judgment and order dated 23.1.2024, noticing that despite having received the summons/ notice on 16.10.2021, the petitioner did not participate in the proceedings before the Trial Court.

2. It is sought to be submitted by the learned counsel from the petitioner that the petitioner got information about the pendency of the suit on 24.11.2021 and he had appeared before the Trial Court by moving an application seeking time to file his defense, but no leave to defend was granted by the Trial Court.

The submission, thus, is that passing of the ex-parte decree on 29.11.2021 by the Trial Court is a result of illegal proceedings conducted by it.

3. Taking note of the above submission, we may record that the present proceeding is a summary proceeding. It is an admitted fact of the matter that the petitioner got information about the pendency of the suit/ notice on 24.11.2021 and as per own case of the petitioner, he had appeared before the Trial Court on 25.11.2021. The appeal was filed by the petitioner / defendant in the summary suit, but no point of defense, as recorded in the order of the Appellate Court, could be brought before it. It is recorded by the Appellate Court that the object underlying the summary procedure is to prevent unreasonable obstruction by the defendant who has no defense and to assist the expeditious disposal of cases. The essence of the summary suit is that the defendant is not, as in ordinary suit, entitled as of matter right to defend the suit. He must apply for leave to defend within the prescribed period (stipulated of 10 days). Such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the Court may deem. In the instant case, as recorded by the Appellate Court that the defendant is not entitled to leave to defend the suit as a matter of right and he has not been able to satisfy the Court about the goodness of his defense. In absence of any substantial defense on any triable issue, there was no question of grant leave to defend to the defendant/ petitioner herein, more so, when he avoided the proceedings of the summary suit, as it is noted by the Appellate Court that from Exh.11, which is tracking record of the notice sent to the defendant at Anjar address, the defendant was duly served with the notice on 16.10.2021. We may further record that on a pointed query made by the Court as to how the petitioner/ defendant came to know about the pendency of the the suit on 24.11.2021, which propelled him to appear before the Trial Court on 25.11.2021, prior to the decree passed in the suit on 29.11.2021, no plausible answer could be given. Only this much was stated that the petitioner has received certain papers from the Watchman and hence, came to know about the suit proceedings on 24.11.2021. This statement made at the bar by the learned counsel for the appellant is without any substance and cannot be accepted as it is difficult to accept that without service of notice at the address of the petitioner, the Watchman could provide him certain papers, as stated.

4. The Appellate Court has also returned a finding from the statement of the appellant/ defendant/ petitioner herein that “he received the summons for the first time through the Watchman”. The fact that the notice was served at the correct address was admitted.

5. Insofar as the second contention of the learned counsel for the petitioner that there did not exist any written contract and for the vague assertions in the suit, it could not have been decreed, we may take note of the findings returned in paragraphs-’25, ‘26’, ‘27’ and 28’ of the order passed by