SHAMKEN MULTIFAB LTD Vs. SATYAM PACKERS

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 24.2.2011 by which the trial court has dismissed the application filed under Order XXXVII Rule 4 of Code of Civil Procedure, 1908 (CPC) by the petitioner/defendant.

(2.) The subject suit under Order XXXVII CPC was decreed by the judgment dated 18.11.2009 on account of the petitioner/defendant, allegedly having failed to file appearance. The case of the petitioner/defendant in the application under Order XXXVII Rule 4 CPC is/was that its counsel in the trial court Sh. Ajay Singh, Advocate had filed the appearance with the Reader of the court but the Reader of the court had not put the appearance on the court file. Sh. Ajay Singh, Advocate also filed such an affidavit dated 4.12.2009 before the trial court.

(3.) A reading of the appearance which is/was said to have filed on behalf of the petitioner/defendant shows that the same is accompanied by the speed post slip, and which speed post slip is dated 28.8.2009, and obviously therefore there cannot be any doubt at least with respect to sending of the copy of the appearance to the respondent/plaintiff in the present case by registered post. In fact, before the respondent/plaintiff was successful in obtaining the judgment and decree on 18.11.2009, the respondent/plaintiff should have stated to the trial court the aspect with respect to receipt of notice of the appearance by post, but, it appears that this aspect was possibly concealed from the trial court.