Om Kumar Vs. Suresh Chanchal and ors.

Om Kumar vs Suresh Chanchal and ors.

Type Court Judgment Court Delhi Decided Mar 22, 2010

~4 min read

https://sooperkanoon.com/case/848611

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Citation: sooperkanoon.com/848611
Court: Delhi High Court
Judge: Shiv Narayan Dhingra, J.
Decided On: Mar 22, 2010
Case Number: CM(M) 1192 and 1195/2009
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

- What remains to be seen is as to whether Pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. If these ingredients are proved by the prosecution then the conviction of th...

Key legal issue: Civil
Acts & sections: Contract Act - Section 35; ;Code of Civil Procedure (CPC) - Order 37

Parties & Advocates

Appellant / Petitioner

Om Kumar

Advocate M.K. Gautam, Adv.

Respondent

Suresh Chanchal and ors.

Advocate V.K. Upadhyay, Adv. for R-1 to R-3

Legal References

Acts: Contract Act - Section 35; ;Code of Civil Procedure (CPC) - Order 37

Excerpt

- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16].....therefore, observed that the sufficient triable issues have been raised.5. it is submitted by counsel for the petitioner that the defendants in leave to defend application has not raised the issue on the basis of which leave to defend was granted by the trial court and the trial court went beyond the pleadings taken by the defendants. the defendants in fact had raised no defence and had not denied the liability.6. it is correct that the defendants in his application for leave to defend had not raised issues on the basis of which the trial court considered and granted leave to defend, however, after going through the suit, it would become apparent that the suit should not have been entertained as one under order 37 of civil procedure code as in the suit apart from due amounts, damages were claimed, which were not liquidated damages under the contract and the damages were to be ascertained by the trial court. such a suit cannot be a suit under order 37. one of the conditions for entertaining a suit under order 37 is that no relief should have been claimed by the plaintiff which falls outside the purview of order 37 cpc. the damages, not in the nature of liquidated damages, do not fall within the ambit and scope of order 37 cpc. it appears that summons of the suit under order 37 cpc were wrongly issued by the trial court and the suit should have been treated as an ordinary suit in the very beginning.7. the observations made by the trial court regarding suit having been filed by the father/husband are born out from the record. if the court on the basis of pleadings of the plaintiff comes to conclusion that there was a triable issue which needs to be addressed by the court, the court can treat the suit under order 37 cpc to be one as an ordinary suit. i, therefore, find no force in these petitions. the petitions are hereby dismissed with no orders as to costs.

Full Judgment

Shiv Narayan Dhingra, J.

1. By these petitions, the petitioners have assailed an order dated 5th August, 2009 whereby the learned trial court allowed an application of the respondents for leave to defend.

2. The petitioners filed a suit for recovery of due amount with 24% interest and damages from the defendants (petitioners herein). In the suit, it was stated that the decree be passed against defendants' servants, employees, legal heirs of the due amount as claimed and damages of Rs. 4,000/- be granted against defendants' servants and employees. The suit was filed against three defendants who were stated to be running a Lucky Draw in the name of 'Adarsh Lucky Scheme and M/s Adarsh Thrift & Credit Society.

3. In the application for leave to defend, the defendants had taken the stand that the suit was not maintainable as it was not based on a written contract. No documents were filed and the membership of the lucky draw was in the name of different persons while the suit was filed by different person. Another defence taken was that the contract between the parties was in the nature of a wagering contract which was a void contract in view of Section 35 of the Contract Act and, therefore, the contract was not enforceable.

4. The trial court while disposing of the application for leave to defend observed that the agreement relied upon by the petitioners were in the name of Smt. Manju Devi and Mohit but they were not party to the suit and the suit was filed by Mr. Om Kumar, who was the husband of Smt. Manju Devi and father of Mohit. No authorization on their behalf was also placed on record. He, therefore, observed that the sufficient triable issues have been raised.

5. It is submitted by counsel for the petitioner that the defendants in leave to defend application has not raised the issue on the basis of which leave to defend was granted by the trial court and the trial court went beyond the pleadings taken by the defendants. The defendants in fact had raised no defence and had not denied the liability.

6. It is correct that the defendants in his application for leave to defend had not raised issues on the basis of which the trial court considered and granted leave to defend, however, after going through the suit, it would become apparent that the suit should not have been entertained as one under Order 37 of Civil Procedure Code as in the suit apart from due amounts, damages were claimed, which were not liquidated damages under the contract and the damages were to be ascertained by the trial court. Such a suit cannot be a suit under Order 37. One of the conditions for entertaining a suit under Order 37 is that no relief should have been claimed by the plaintiff which falls outside the purview of Order 37 CPC. The damages, not in the nature of liquidated damages, do not fall within the ambit and scope of Order 37 CPC. It appears that summons of the suit under Order 37 CPC were wrongly issued by the trial court and the suit should have been treated as an ordinary suit in the very beginning.

7. The observations made by the trial court regarding suit having been filed by the father/husband are born out from the record. If the court on the basis of pleadings of the plaintiff comes to conclusion that there was a triable issue which needs to be addressed by the court, the court can treat the suit under Order 37 CPC to be one as an ordinary suit. I, therefore, find no force in these petitions. The petitions are hereby dismissed with no orders as to costs.

Same Court & Year Delhi · 2010 Same Parties Om Kumar vs Suresh Chanchal and ors. Same Subject Civil Same Judge Shiv Narayan Dhingra, J. Acts & Sections Contract Act - Section 35; ;Code of Civil Procedure (CPC) - O...

Civil