CM(M) No.331/2008 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CM(M) 331/2008 Date of Decision: 20th April, 2010 GENERAL COPY HOUSE & ANR. ..... Petitioners Through: Mr. Prag Chawla, Advocate. versus RAJEEV JAIN ..... Respondent Through: Mr. J.K. Sharma, Advocate % CORAM: HON’BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. (Oral) 1. Respondent filed a suit for recovery of Rs.13,30,000/- with interest pendent lite and future interest under Order 37 Code of Civil Procedure (hereinafter referred to as „CPC‟) on the basis of Promissory Note and Receipt dated 24th September, 2001 executed by the Petitioner for repayment of loan of Rs.10 lacs taken by him from the Respondent. He had also CM(M) No.331/2008 Page 2 of 6 agreed to pay interest @ 1.65 % per month on the said amount. 2. Petitioner was duly served with summons for appearance on 8.11.2005 and he entered appearance on 10th November, 2005. Thereafter summons for judgment were sent to be served upon the Petitioners but they refused to accept the same. Trial Court under such circumstances, issued summons for judgment to be served upon the Petitioners by way of publication. Summons for judgment were accordingly served upon the Petitioners by publication as well as by affixation. 3. It seems that instead of proceeding with the passing of a decree as prayed for, in the absence of any application for leave to defend, the Trial Court inadvertently fixed the matter for recording of ex-parte evidence for 20.07.2007. This resulted into filing of an application by the Respondent to rectify the mistake. The Trial Court on 20.7.2007 in the presence of the Petitioners considered the said application and reviewed its order dated 19.04.2007 finding irregularity in the order, and decreed the suit of the Respondent as per the provision of order 37 CPC. Thereafter, Petitioners filed an CM(M) No.331/2008 Page 3 of 6 application under Order 37 Rule 4 CPC for setting aside the judgment and decree dated 20.07.2007, the said application was dismissed by the Trial Court on 17.11.2007. 4. Impugned in this petition are the orders of the Trial Court dated 20.07.2007 and 17.11.2007. 5. Mr. Prag Chawla, learned counsel for the Petitioners has argued that since the Petitioners were present in the Court on 20.07.2007, the Court should have given him a hearing before deciding the application of the Respondent reviewing its own order dated 19.04.2007. The Trial Court declined the request of the Petitioner to give him a hearing considering the fact that the suit was under Order 37 CPC and Petitioners despite service of summons for judgment by way of publication and affixation failed to file an application for leave to defend the suit within the period of limitation. 6. I find no irregularity or illegality in the order of the Trial Court dated 20.07.2007 when it observed:- “……. Heard on the application as presence of the defendants is not material as the suit was filed under Order 37 CPC and the defendants despite service of CM(M) No.331/2008 Page 4 of 6 summons for judgment issued in Form IVA, Appendix B CPC did not file leave to defend application within the stipulated period of 10 days.” 7. While reviewing its order dated 19.04.2007, the Court did observe that the defendant was proceeded ex-parte inadvertently and the case was fixed for 20.7.2007 for plaintiff‟s ex-parte evidence. 8. To my mind, the Trial Court, was right in reviewing its own order dated 19.4.2007 to rectify the mistake which had appeared in the said order and thereafter rightly proceeded to pass a decree in favour of the Respondent as prayed for under the provisions of Order 37 CPC. 9. It is a settled principle of law that Court is within its jurisdiction to review its order if it finds some inadvertent mistake having crept in its order. Therefore, the Court was within its power and jurisdiction to review the order dated 19.04.2007 and the Court rightly exercised its power in reviewing the same. 10. While dismissing the application of the Petitioners under CM(M) No.331/2008 Page 5 of 6 Order 37 Rule 4 CPC on 17.11.2007, the Court observed in para 7, 8 and 9 as under:- “7. For setting aside impugned judgment and decree the defendants have to show special circumstances besides reasonable grounds to defend the suit under Order 37 Rule 4 CPC. Perusal of the summons for judgment sent to the defendants and the report thereupon by the process server reveals that defendants avoided to take the same and the person available at the address refused to accept the same which was a sufficient service in term of order 37 Rule 3 clause (2) CPC. 8. In the present case as a precautionary measure the defendants were also deemed served by publication. From the application under disposal it is also crystal clear that defendants were aware of the proceedings as on 12.7.2007 but did not file leave to defend application. they also did not file leave to defend application despite service of summons in Form IVA, Appendix B, under Order 37 CPC even on 20.7.2007 as by filing application under Section 151 CPC they sought time to engage counsel which was not permissible under the procedure U/o 37 CPC under which the judgment was passed against the defendants in term of order 37 R 3 CPC as detailed in the impugned judgment/order dated 20.7.2007. The authority relied upon in the case of Sharad Vs. Vishnu reported in AIR 1978 Bombay 187 is also of no help to the applicants/defendants. CM(M) No.331/2008 Page 6 of 6 9. As already observed not only no special reasons/grounds are pleaded in the application under disposal for setting aside the impugned judgment and decree but also vague plea, with regard to defence of the case, has been taken therein which is not tenable in law as also no specific averments/plea made in defence on merits of the suit to challenge the same.” 11. Observations of the Trial Court while dismissing the application clearly indicate that Court was not convinced with the plea of the Petitioners that they were not served with the summons for judgment and rightly so, as summons for judgment were served upon the Petitioners by way of publication as well as by affixation. Besides, the grounds of defence raised in the application were rightly not considered by the Court being untenable in law or on facts. 12. Hence, I find no merits in the petition, the same is accordingly dismissed. ARUNA SURESH, J. APRIL 20, 2010 vk