JUDGEMENT
SANJAY KISHAN KAUL, J. -
(1.)(ORAL)
The petitioner is impugning the order dated 02.06.2006 in terms whereof the
application filed by the petitioner under Order 37(4) of the Code of Civil
Procedure, 1908 (herein-after referred to as the said Code) as well as the
application filed under Order 37 Rule 3(7) and Rule 4 r/w Section 151 of the
said Code had been dismissed. The result is that the decree passed against the
petitioners as a consequence of their failure to enter appearance in case of
defendants no.1 and 2 and of the failure to file the leave to defend application
in case of defendant no.3 is sustained. The decree is really the consequence of
the deeming provisions of Order 37 of the Code in terms whereof the allegations
made in the plaint are deemed to be admitted to be correct and a decree has to
follow.
(2.)The question which has arisen is as to the maintainability of the present
petition under Article 227 of the Constitution of India. This aspect is subject
matter of earlier adjudication. In fact a conflict of views between the learned
Single judges resulted in judgment of the Division Bench of this court in Siri
Krishan Bhardwaj v. Manohar Lal Gupta and Another; AIR 1977 Del 226. The
Division Bench was of the view that a revision petition was maintainable against
such an order since it entailed only bringing of an error to the notice of the
High Court and conferred no further right of hearing on the aggrieved party.
Irrespective of the fact that the decree would follow, a revision against such
an order was held to be competent. The aforesaid judgment has also been
followed by the learned Single Judge of this Court in M/s Skylark Motors
v. Lakshmi Commercial Bank Limited; AIR 1997 Del 46.
(3.)There is however different view taken by the learned Single Judge of this
court in V.S.Saini and Anr v. DCM Ltd; 110 (2004) DLT 641. The judgments in Siri
Krishan Bhardwaj v. Manohar Lal Gupta and Another's case (supra) and M/s
Skylark Motors's case (supra) were taken note of but it was observed that two
further aspects have arisen which persuade the learned judge to take a different
view. The first was the judgment of the Supreme Court in Shah Babulal Khimji v.
Jayaben D.Kania and Another; AIR 1981 SC 1786 and the second the enforcement of
the amendments carried out in Section 115 of the said Code. It was also noticed
that M/s Skylark Motors's Case (supra) did not consider the judgment of the
Supreme Court in Shah Babulal Khimji's Case (supra). In Shah Babulal Khimji's
Case (supra) the suit had been filed on the original side of the Bombay High
Court in which interim relief was sought for, which was declined. The appeal
was dismissed by the Division Bench as not maintainable. The Supreme Court
held that such a judgment was appealable within the meaning of Clause 15 of the
Letters Patent.
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