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Vijay Bank Ltd. Vs. S.S. Upadhyaya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 18 of 1979
Judge
Reported in18(1980)DLT116; 1980RLR609
ActsDelhi High Court Original Side Rules - Rule 2
AppellantVijay Bank Ltd.
RespondentS.S. Upadhyaya and anr.
Advocates: Vijay Verma and; L.B. Gupta, Advs
Excerpt:
.....we may at the same time note that the usual practice in this court as well as in lower courts not only in delhi but also punjab and haryana is usually to put in a detailed application giving the various facts and grounds and to file an accompanying shorter affidavit swearing to the contents of the applications......on the technical ground that it was not properly filed. merits were not gone into. though the learned judge had permitted the appellant to amend the application but the opportunity was not availed of. (2) at the time when the appeal came up before us for admission we were of the view that as even a new application could have been filed, the point raised in the appeal was too technical a matter and the bank may well have been advised not to pursue this appeal, as it will no decide anything on merits. mr. bhatt however, pressed upon us to decide this matter because according to him there were different views being taken on the original side of this court by different courts. the appellant filed a short application under order 42 rule i of the code of civil procedure praying that the.....
Judgment:

Rajinder Sachar, J.

(1) This is plaintiffs appeal against the order of the learned single judge dismissing the application is 3760/78 which was moved for appointment of a receiver. The application was dismissed on the technical ground that it was not properly filed. Merits were not gone into. Though the learned Judge had permitted the appellant to amend the application but the opportunity was not availed of.

(2) At the time when the appeal came up before us for admission we were of the view that as even a new application could have been filed, the point raised in the appeal was too technical a matter and the bank may well have been advised not to pursue this appeal, as it will no decide anything on merits. Mr. Bhatt however, pressed upon us to decide this matter because according to him there were different views being taken on the original side of this court by different courts. The appellant filed a short application under Order 42 Rule I of the Code of Civil Procedure praying that the receiver be appointed for the reasons stated in the accompanying affidavit. The affidavit is a detailed one giving the various facts and reasons as to why appointment of the receiver was necessary. The learned Judge however, took the view that a complete application which is capable of being replied should be filed. The learned Judge apparently took the view that the affidavit should be a shorter one and not the application as has been done in the present case. Mr. Gupta appearing for respondent No. 3., M/s Harsha Tractors, however, informs us that the respondent No. 1, S.S. Upadhaya, against whom this application was filed had since been declared insolvent. The appeal normally would have become infructuous on that ground. But we feel that in view of the fact that this appeal was admitted to clarify a matter of procedure and the view of the learned single judge having been expressed, we should clarify the position in law to avoid any future controversy.

(3) Now the Original Side Rules framed by this court provide in Chapter Ix, Rule 2(c) that in interlocutory application shall contain only one prayer or series of alternative prayers and shall not contain any argumentative matter and an affidavit staling clearly the grounds and the facts on which the application is based. It appears to us that Rule 2(c) of Chapter Ix of the Original Side Rule contemplates that the affidavit should contain the grounds and the facts on which the application, is based. This is what precisely the appellant had done. Though we may at the same time note that the usual practice in this court as well as in lower courts not only in Delhi but also Punjab and Haryana is usually to put in a detailed application giving the various facts and grounds and to file an accompanying shorter affidavit swearing to the contents of the applications. We are told by Mr. Gupta the learned counsel for the respondent who has a very long experience on the Original Side, that practically never a problem has arisen nor objections are entertained irrespective of the fact whether an application is a long one or affidavit is a long one. Frankly it appears to us that to raise the objection raised by the learned single judge raises procedure to the status of a rigid inflexible rule leading to injustice and delay rather than treat the procedure a hand maiden for quick and expeditious disposal of the case, the main purpose of any procedure whether the application should contain the full grounds or the affidavit is not a matter of substance. The important point is that whatever facts are to be urged have necessarily to be sworn to. If a detailed affidavit has given the full grounds then a shorter application referring to that affidavit for seeking the relief would suffice and serve the purpose. If however, there is a complete application giving the fact and grounds it would be superfluous to ask the same matters to be repeated in an affidavit in full. In that case a shorter affidavit swearing to the contents of the relevant grounds and facts in the application would also suffice. In either case this matter is more a matter of form and practice dependant upon the practice of each counsel rather than a matter of substance, much less of jurisdiction of the court to entertain such an application. We, thereforee, feel that the learned judge was not right in holding that on such a ground the application was not maintainable. So long as the substance of the details has been sworn to whether by shorter affidavit or longer, it will not have any relevance to the maintainability of the application.

(4) We, thereforee, cannot uphold the order of the learned single judge, which is set aside. The result is that the appeal is allowed and the application will now go back to the learned single judge for being considered on merits and taking into account the subsequent facts that have taken place, and in the light of the opinion given by us here.


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