Dalip Malik v. Sanjeev Kumar & Ors.

CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG

1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.B.B.Kaushik,Advocate & Mr.H.K.Nahata, Advocate for the petitioner **** RAKESH KUMAR GARG J. This is defendant's revision petition challenging the impugned order dated 04.05.2010 whereby while allowing the application under Order 9 Rule 7 read with Section 151 CPC filed by the petitioner, the trial Court imposed costs of Rs.5000/- and directed him to furnish security of Rs.30 lacs in the Court failing which the application under Order 9 Rule 7 CPC was ordered to be dismissed, automatically. As per the version of the petitioner, plaintiff-respondent filed a suit for decree of specific performance on 21.09.2004 on the basis of an agreement dated 09.09.2002 allegedly executed by the petitioner. It is further the case of the petitioner that he is pursuing the case diligently. However, vide order dated 14.12.2009, since there was no presence on behalf of the petitioner, the trial Court ordered to proceed ex parte against him. Petitioner moved an application under Order 9 Rule 7 CPC on Civil Revision No.3276 of 2010(O & M) 2

20.01.2010, inter alia praying for setting aside the order dated 14.12.2009 whereby the trial court had proceeded ex parte against the petitioner. The trial Court vide impugned order dated 04.05.2009 though allowed the application and set aside the order dated 14.12.2009 subject to payment of costs of Rs.5000/- and imposed a further condition on the petitioner to furnish in Court a security of Rs.30 lacs within a week, failing which the application was ordered to be deemed to be automatically dismissed. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the petitioner was not at fault and was pursuing the case diligently and he never resorted to any delaying tactics and thus the trial court committed an error while imposing a condition of furnishing security for a sum of Rs.30 lacs. As the condition imposed upon him was harsh, the trial court has indirectly denied the relief prayed for by the petitioner despite the fact that he had a a very good and sufficient reason for his non-appearance. Learned counsel for the petitioner has further relied upon a judgment of the Hon'ble Supreme Court in the case of Vijay Kumar Madan and ors.versus R.N.Gupta Technical Education Society and Ors.(2002)3 Supreme Court Reports 217. On the basis of the aforesaid judgment of the Supreme Court, learned counsel for the petitioner has argued that the Court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of virtually decreeing the suit though the ex parte order was set aside or to put the parties on such terms as may be too onerous and has submitted that the impugned order to the extent of furnishing of Rs.30 lacs by the petitioner be set aside. I have heard learned counsel for the petitioner and perused the impugned Award and other documents attached with the revision petition. It may be stated at the outset that learned counsel for the Civil Revision No.3276 of 2010(O & M) 3 petitioner has not challenged the jurisdiction of the court to impose said condition of furnishing the security while passing an order under Order 9 Rule 7 CPC. The argument raised before this Court on behalf of the petitioner is that the condition imposed by the trial Court while setting aside the ex parte proceedings of furnishing security to the extent of Rs.30 lacs is onerous and harsh and therefore the same is liable to be set aside. It may be relevant to point out here that while imposing the aforesaid condition of furnishing of security, the trial court found that the petitioner has received a huge sum of Rs.25 lacs from the respondent/plaintiff and was interested in delaying the matter on one pretext or the other. Earlier also, the petitioner was proceeded against ex parte and after setting aside that order the matter was being delayed by the petitioner by filing one application or the other. Moreover, trial court also found that conduct of the petitioner is such, it will be in the interest of justice, that a condition of furnishing the security be imposed upon him while allowing the application under Order 9 Rule 7 CPC. It may also be pointed out here that in the revision petition though the petitioner has submitted that condition of furnishing security is harsh and onerous but it is nowhere submitted by him that he cannot afford/furnish the aforesaid security and for that reason his right to contest the suit will be meaningless. The judgment of the Hon'ble Supreme Court cited by learned counsel for the petitioner is distinguishable on the facts of the case as in that case, the applicant was directed to deposit a monthly lease of Rs.63,087.50 P. per month and the court found the aforesaid condition as onerous. There is no dispute with the proposition of law that the manner in which, the terms are to be devised while passing an order under Order 9 Rule 7 CPC, would depend on the facts and circumstances of the given Civil Revision No.3276 of 2010(O & M) 4 case. As aforesaid, in the present case, the petitioner had received a sum of Rs. 25 lacs from respondent No.1 and was also proceeded against ex parte earlier. The suit was filed in the year 2004 and the petitioner has not come out with the plea that he cannot furnish the aforesaid security. Thus, keeping in the aforesaid facts and circumstances of the case, I find no merit in this revision petition. Dismissed.

17.05.2010 (RAKESH KUMAR GARG) JUDGE