Dismissed

Santosh Uppal v. M/S Dharam Pal Sandeep Kumar Gupta

J&K HC10 Dec 2021RFA/22/2019

Case brief

AI extract

What is this about?

The High Court of Jammu & Kashmir dismissed a revision petition challenging orders confirming the dismissal of an application to set aside an ex-parte decree. The Court upheld the lower court's discretion to require a 50% deposit of the decretal amount and found the defendant's failure to comply justified the dismissal.

What did the court decide?

The petition under RFA No. 22/2019 is dismissed without any interference with the impugned orders dated 02.01.2019 and 29.01.2019.

Santosh Uppal Vs M/S Dharam Pal Sandeep Kumar Gupta — Execution and Attachment | J&K HC (2021)

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Sr. No.60

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Pronounced on : 10.12.2021

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RFA No. 22/2019 CM No. 4029/2019 CM No. 4030/2019

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Santosh Uppal …..Petitioner(s)

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Through: Mr. R.K.Bhatia, Advocate.

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M/s Dharam Pal Sandeep Kumar Gupta and another

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Through: Mr. R.P.Sharma, Advocate.

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Coram: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE JUDGMENT

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The present petition is treated as revision petition. The judgment and decree was passed against the petitioner herein, defendant in the suit, by the Court of learned Principal District Judge, Jammu vide dated 17.10.2017. The H I G H decree is passed against the defendant for amount of Rs.3,20,750/- along with O F J A M M U & C O U R T K A S H M I R A N D interest @ 8% per annum from the date of institution of the suit till realization of L A D A K H the decreetal amount. The petitioner moved an application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree. The Court set aside the ex-parte decree subject to the deposit of the 50 % of the decreetal amount in the court within a period of 15 days and payment of compensatory cost of Rs. 5,000/- to be paid by the defendant to the plaintiff. By virtue of said order, it was further directed that in case the defendant fails to deposit the 50 % of the decreetal amount the application filed for setting aside the ex-parte judgment/decree shall be deemed to have been dismissed. The petitionerdefendant in the meanwhile moved application for review of the order but was dismissed vide order dated 23.01.2019. Inspite of dismissal of the review

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RFA No. 22/2019

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application, the Court still granted final opportunity of five days to the defendant to deposit 50% of the decreetal amount failing which the application under Order 9 Rule 13 shall be deemed to have been dismissed. As the petitioner herein did not comply the order dated 23.01.2019 also, the application filed under O 9 R 13 CPC, as per order dated 29.1.2019, was held deemed to have been dismissed.

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The present petition has been filed by the petitioner-defendant against orders dated 02.01.2019 and 29.01.2019 respectively on the ground that the learned Court has not recorded any reason while imposing condition of deposit of 50 % of decreetal amount and that the direction for such deposit is, in any case, onerous as the defendant is unable to deposit it. It is further pleaded that the compensatory cost having been directed to be paid while deciding the application for setting aside judgment/decree the Court could not direct for H I G H O F J A M M U & deposit of 50 % of the decreetal amount. C O U R T K A S H M I R A N D 3. The respondents have appeared in the appeal and have contested the L A D A K H submissions made in the present appeal.

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Learned counsel appearing for the petitioner has argued that the direction given for deposit of 50% of the decreetal amount is unjustified though the court set aside the decree passed against her while passing directions in the application for setting aside the decree. The petitioner is not in a position to comply with the order as she is unable to deposit 50% of the decreetal amount.

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Learned counsel for the respondents-plaintiffs has argued that the Court had every discretion to direct deposit of 50 % of the decreetal amount.

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RFA No. 22/2019

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The defendant not only failed to carry out the directions of the Court she also failed to make out a case for her in the review petition. The defendant failed to deposit the requisite amount even as the indulgence was shown by the court vide order dated 23.01.2019.

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The issue which requires consideration is as to whether the Court while setting aside the ex-parte decree could impose the conditions as initially ordered vide dated 02.01.2019. The plaintiff had earned the money decree in his favour. The defendant did not choose to contest the suit after having initially caused her appearance as is evident from the decree passed by the court. The trial court apparently did not find that sufficient reason was shown by the defendant for setting aside ex-parte decree yet in the interest of justice the exparte decree was set aside but subject to the conditions as mentioned above. The court while setting aside the ex-parte decree could direct the defendant to H I G H O F J A M M U & deposit reasonable amount of the decreetal amount cannot be disputed. It is not C O U R T K A S H M I R A N D that the court has passed the order in the absence of provision of law. L A D A K H O9R13CPC arms the court to set aside the decree upon such terms as to costs, payment into court or otherwise as it thinks fit. The court was within its discretion in passing the direction for costs and deposit of portion of the decreetal amount.

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The Hon’ble Apex Court in AIR 2007 SC 67 held that the court is competent to direct the defendant to pay portion of the decreetal amount while setting aside ex-parte decree. Of course the condition imposed has to be reasonable and legal.

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RFA No. 22/2019

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The condition imposed by the court to deposit 50% of the decreetal amount cannot said to be unjustified. The discretion shown by the court is not arbitrary. The defendant cannot take the plea that as the application filed for setting aside decree was allowed the court could not impose the deposit of the portion of the decreetal amount. The court has shown leniency to the defendant to contest the suit again inspite of the fact that the court did not otherwise find merit in the application filed for setting aside decree.

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It appears that the defendant was not serious about the contesting the suit as instead of complying with the directions of the court she preferred review of the directions passed by the court and even thereafter failed to comply with the order dated 23.1 2019 whereby further five days time was granted to do the needful in terms of order dated 02.1.2019.

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In totality of the circumstances of the case this Court does not find the H I G H O F J A M M U & condition imposed regarding deposit of 50% of the decreetal amount as C O U R T K A S H M I R A N D unreasonable or excessive. As the defendant failed to comply with the court L A D A K H directions, the court was left with no other option but to pass order impugned dated 29.01.2019 whereby the application filed under O 9 R 13 CPC was held to have been deemed to have been dismissed. No interference is called for in the orders dated 02.01.2019 and 29.01.2019. The petition is without merit and is dismissed.

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(Puneet Gupta) Judge

Jammu

10.12.2021

Shammi

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

Santosh Uppal v. M/S Dharam Pal Sandeep Kumar Gupta

Case brief

What is this about?

What did the court decide?

Santosh Uppal v. M/S Dharam Pal Sandeep Kumar Gupta

Case brief

What is this about?

What did the court decide?

What the court decided

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