Mahesh Kumar Joshi Vs Madan Singh Negi

Indermeet Kaur, J.@mdashImpugned order is dated 24.02.2010. The suit filed by the plaintiff under Order XXXVII of the CPC (hereinafter referred to as the "Code") had been decreed. Record shows that the present suit has been filed by the plaintiff Madan Singh Negi for recovery of Rs. 3 lacs on the basis of two post dated cheques i.e. Rs. 50,000/- and Rs. 2,50,000/- bearing No. 185286 and 185287 dated 29.06.2009 and 09.07.2009 drawn on the Central Bank of India, Morigate, Delhi; contention was that these amounts had been paid by the defendant to the plaintiff as part consideration against the property pursuant to the documents of sale having been executed by the plaintiff in favour of the defendant after handing over the vacant and peaceful possession of the suit property to the defendant. Record further shows that there is no dispute to the fact that the wife of the defendant was served with the summons of the suit on 19.12.2009; however appearance was not put in the Court by the defendant up to 24.02.2010. There appears to be absolutely no explanation whatsoever for the late appearance of the defendant; contention was that the defendant was illiterate and he was not aware of the procedure and as such the defendant did not file the memo of appearance in time. Admittedly memo of appearance has to be filed within ten days from the date of service which was no done. On the same day i.e. on 24.02.2010 ex-parte judgment and decree followed in favour of the plaintiff.

2. Thereafter an application under Order XXXVII Rule 4 of the Code was filed by the appellant seeking setting aside of the aforenoted ex-parte judgment and decree; grounds and "special circumstances" as contained in the aforenoted application are mentioned in para 14. The whole bone of contention which is also the primary argument urged before this Court is that the power of attorney vested in Madan Singh Negi to file the present suit does not at all mention the property in dispute and attention has been drawn to the aforenoted document; further contention being that the attorney also does not given power to the plaintiff to file the present suit in the absence of which the suit was not maintainable. To support this submission, learned counsel for the petitioner has placed reliance upon a judgment reported as Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, contention being that the allegations in the plaint are deemed to be admitted but it is also an obligatory duty on the part of the Court that the allegations contained in the plaint do make out a case for a decree; the Court cannot be a mute spectator. There is no doubt to this proposition as has been pointed out by the learned counsel for the petitioner but the power of attorney which has been highlighted and vehemently argued before this Court is not the subject matter of the instant transaction; the instant transaction as noted supra relates to two post-dated cheques of Rs. 50,000/- and Rs. 2,50,000/- in favour of the plaintiff. There is no dispute on this. It is not the case of the defendant that the said cheques have not been issued by him. His whole case is bordered upon the fact that the plaint has not made a reference to the property. This submission of the learned counsel for the petitioner carries no force as the details of the property are in no manner connected with the issue in the present suit. As noted supra present suit has been filed under the summary procedure under Order XXXVII of the Code for recovery of the amounts of the aforenoted two dishonoured cheques. There is also no dispute that such a suit on these negotiable instruments is maintainable under Order XXXVII of the Code. It is not the case of the petitioner that he has not signed these cheques and this transaction has not been entered into by him. Section 118 of the Negotiable Instrument Act also casts a presumption in favour of such a negotiable instrument which is presumed to be an instrument drawn for consideration.

3. No other special circumstance has been pleaded or has been urged or argued.

4. The Apex Court in Rajni Kumar Vs. Suresh Kumar Malhotra and Another, in this context had inter-alia held as under:-

The expression'' special circumstances'' is not defined in the C.P.C. nor is it capable of any precise definition by the court because problems of human being are so varied and complex, In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37, Rule 4, the court has to determine the question, on the facts each case, as to whether circumstances pleaded are so unusual or extra ordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit.

5. The impugned judgment in no manner calls for any interference. In the absence of any memo of appearance having been filed on record, the allegations contained in the plaint were rightly deemed to be admitted as a result of which the decree was followed in favour of the plaintiff. Petition is without any merit. Dismissed.