Interim Order 10

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 19 CS SCJ 1442/25
RAKESH JAIN Vs. RAMESH CHANDRA MISHRA
07.07.2026
Present: Mr. Harshil Gupta, Ld. Counsel for plaintiff.
Mr. Deepak Mishra, Ld. Counsel for defendant.
Ld. Counsel for plaintiff submits that he has received copy of application
u/s 151 C.P.C moved by the defendant. He further submits that he does not wish to file
reply and wishes to argue straightaway.
Arguments heard on an application u/s 151 C.P.C moved by the defendant
seeking transfer of the present matter before Ld. Predecessor for deciding the application
u/o 37 rule 3 r/w 3(7) r/w section 151 C.P.C, on the grounds that the arguments have
been heard by ld. Predecessor on the said application.
Arguments have already been heard on the application u/o 37 rule 3 rw/
3(7) r/w section 151 C.P.C.
Put up for orders at 3 PM.
(Himanshu Sehloth)
Civil Judge-02 (Central), Delhi
07.07.2026
At 3 PM.
Present: None.
By this common order, this Court shall dispose of the following
applications moved on behalf of the defendant:
(i) An application under Order XXXVII Rule 3 r/w Rule 3(7) r/w Section 151 of the
CPC seeking condonation of delay in entering appearance and grant of leave to enter
appearance; and
(ii) An application under Section 151 CPC seeking transfer of the present case to the Ld.
Predecessor for pronouncement of the order on the aforesaid application under Order
XXXVII Rule 3 read with Rule 3(7) and Section 151 CPC.
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..2..
Application under Section 151 CPC
The defendant/applicant has filed the present application praying that the
case file be placed before the Ld. Predecessor of this Court for pronouncement of the
order on the application under Order XXXVII Rule 3 read with Rule 3(7) and Section
151 CPC. It is averred that the Ld. Predecessor had heard the arguments on the said
application on 18.04.2026 and had reserved the matter for orders to be pronounced on
23.05.2026. However, before the order could be pronounced, the Ld. Predecessor came
to be transferred.
It is further submitted that when arguments were subsequently addressed on
the pending application under Order IV Rule 1(3) CPC, counsel for the plaintiff objected
to the hearing on the ground that the defendant had not yet been granted leave to enter
appearance. It is contended that once arguments on the application seeking condonation
of delay and leave to enter appearance had already been concluded and the matter stood
reserved for orders, the same ought to have been pronounced by the predecessor in terms
of the judgment of the Hon’ble High Court of Delhi in
BD Sharma v. State of NCT
Delhi and Ors.
The said application is vehemently opposed by the plaintiff. It is stated that
the present application is malafide and mischievous in nature. It is stated that post
transfer of the ld. Predecessor, the matter was firstly listed on 23.05.2026 and thereafter
on 04.07.2026. It is stated that the counsel for the defendant had not raised any objection
earlier and had also argued at length. It is stated that the present application has been
filed under apprehension of not securing the favourable order and tentamounts to forum
shopping. Further, after the arguments have been heard, the matter is already reserved
for orders on the application u/s 37 rule 3 r/w 3 (7) r/w section 151 C.P.C. This court is
appropriate forum to adjudicate the same. Lastly, the said application be dismissed with
heavy costs.
This Court has given thoughtful consideration to the submissions advanced.
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..3..
There can be no quarrel with the proposition laid down by the Hon’ble High
Court of Delhi in
BD Sharma v. State, wherein it has been observed that, as a matter of
judicial propriety and administrative discipline, a Presiding Officer should endeavour to
pronounce orders in matters in which arguments have already been heard and
judgment/order has been reserved prior to transfer.
However, the said principle cannot be invoked in the peculiar facts of the
present case. The record reveals that after the transfer of the Ld. Predecessor, the
application under Order XXXVII Rule 3 read with Rule 3(7) and Section 151 CPC was
argued afresh before the undersigned at considerable length by both the parties. At no
stage during the course of those arguments did the defendant raise any objection or seek
transfer of the matter for pronouncement of orders by the Ld. Predecessor. On the
contrary, the defendant consciously participated in the proceedings before this Court
without demur and allowed the matter to be fully heard. The present application has
been filed only after the matter stood reserved for orders before this Court.
The conduct of the defendant clearly indicates an attempt to reopen
proceedings which had already been concluded before this Court. Such conduct is not
only belated but also amounts to an abuse of the process of law and bears the trappings
of forum shopping. A litigant cannot be permitted to approbate and reprobate by first
inviting a decision from a Court and thereafter seeking transfer merely because the
matter has been reserved for orders.
Accordingly, finding no merit in the application, the same is dismissed with
costs of Rs. 2,000/- payable by the defendant to the plaintiff.
Application under Order XXXVII Rule 3 read with Rule 3(7) and Section
151 CPC.
By way of the present application, the defendant seeks condonation of delay
in entering appearance and consequential leave to enter appearance.
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It is stated that the summons in the suit were served upon the defendant on
25.08.2025, whereas appearance was entered on 18.09.2025, resulting in a delay of
approximately thirteen days. The defendant attributes the delay to two circumstances,
namely, that complete sets of documents were not supplied along with the summons and
that during the relevant period the members of the Bar were observing a strike pursuant
to resolutions passed by the Bar Association. It is submitted that the strike continued till
08.09.2025 and appearance was entered within a reasonable period thereafter.
The application is vehemently opposed by the plaintiff. It is contended that
the summons were duly served and deliberately ignored by the defendant. It is further
submitted that no independent application for condonation of delay has been filed, that
the application lacks material particulars explaining the delay, and that no sufficient
cause has been disclosed warranting exercise of judicial discretion. Further, the
litigant/defendant was not prevented to enter appearance after service.
Heard. Record perused.
At the outset, it deserves to be noted that strikes by advocates have
repeatedly been held to be illegal and impermissible by the Hon’ble Supreme Court in
Ex-Capt. Harish Uppal v. Union of India & Ors. (2003) 2 SCC 45. Consequently, a
strike by advocates, by itself, cannot constitute a legally sustainable ground for
condonation of delay. Equally, the defendant has failed to explain why he could not
himself enter appearance before the Court within the prescribed period, independent of
the conduct of his counsel.
Likewise, the plea regarding incomplete service of documents does not
inspire confidence. The plea pertains to Annexure-7 accompanying the plaint, which,
prima facie, had no bearing upon the defendant’s obligation to enter appearance within
the statutory period prescribed under Order XXXVII CPC. The said contention,
therefore, does not furnish a sufficient explanation for the delay.
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Nevertheless, while the explanations furnished by the defendant are not
wholly satisfactory, this Court cannot lose sight of the settled principle that procedural
laws are intended to advance the cause of justice and not to defeat adjudication on
merits. Courts have consistently held that, wherever possible, disputes should be decided
on their substantive merits unless the conduct of the defaulting party is found to be
deliberate, contumacious or mala fide. The record does not disclose any material to infer
that the delay of thirteen days was actuated by deliberate negligence or with an intention
to obstruct the proceedings.
Balancing the competing considerations and to ensure that the defendant is
not non-suited at the threshold for a comparatively short delay, this Court is of the
considered opinion that the ends of justice would be adequately served by condoning the
delay subject to payment of costs.
Accordingly, the delay in entering appearance is condoned. Leave to enter
appearance is granted subject to payment of costs of Rs. 2,000/- to the plaintiff on or
before NDOH.
The plaintiff shall thereafter be at liberty to take appropriate steps in
accordance with Order XXXVII CPC, including filing an application for issuance of
summons for judgment, if so advised.
Put up for arguments on the pending application u/o 4 rule 1 (3) r/w order 7
rule 14 r/w 37 rule 3 (1) r/w section 151 C.P.C/further proceedings on 17.08.2026.
(Himanshu Sehloth)
Civil Judge-02 (Central), Delhi
07.07.2026
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