Yogeshwar Dayal, J.
(1) This revision petition is directed against an order of learned Commercial Sub-Judge, Delhi, dated 22nd February, 1983, whereby the learned Commercial Sub-Judge, accepted an application filed by the plaintiff Under the provisions of Order 37 Rule 2 Sub-rule (3) of the Code of Civil Procedure.
(2) The plaintiff/respondent had filed a suit under the provisions of Order 37 of the Code of Civil Procedure for recovery of Rs. 20.900.00 against the petitioner.
(3) The case of the plaintiff/respondent in the plaint was that the defendant entered into an agreement dated 23rd May, 1981 with the plaintiff to sell a piece of land situated in Gurgaon measuring about 160 sq. yards. It was pleaded that the defendant represented himself to be the owner of the said property and agree to sell the land for a total consideration of Rs. l,25,000.00 At the time of execution of the said agreement on May 23, 1981, the defendant received from the plaintiff a sum of Rs. 10.000.00 as part payment of the total consideration and receipt thereof was also executed. As per the terms and conditions of the agreement, the defendant agreed and was obliged to produce to the plaintiff before August 7, 1981, title deeds pertaining to the said property particularly the original sale deed dated April 29. 1977 executed by Haryana Urban Development Authority ; permission from the Competent Authority and the employee of the defendant to sell the said property ; certificate of valuation from a Government approved valuer; approved plan of the said property ; income-tax clearance certificate and other documents pertaining to the said property. It was stated that it was a term of the said agreement that the defendant should execute a proper sale deed in favor of the plaintiff and should get it duly registered on or before 7th August 1981. The balance consideration amount of Rs. l,15,000.00 was agreed to be paid by .the plaintiff to the defendant before the concerned Sub-Registrar at the-..... ... . ......time of registration of proper sale deed. It was also the terms of the said agreement that in case defend ant failed to execute and duly registered proper sale deed, the defendant would be liable to refund the said amount of Rs. 10,000.00 received by him at the time of execution of the said agreement Along with another sum of Rs, 10,000.00 by way of liquidated damages.
(4) It was further pleaded in the plaint that on two occasions before August 7, 1981 the plaintiff called upon the defendant and the defendant promised that he would definitely comply with the conditions of the agreement and would duly execute and register proper sale deed as per the terms thereof. Thereafter, the defendant deliberately and maliciously avoided the plaintiff. It was further pleaded that the plaintiff was always ready and willing to have the sale deed executed and registered and thus the defendant as per the terms of the agreement is liable to pay Rs. 20,000.00 to the plaintiff.
(5) It was further pleaded that on August 8, 1981, the defendant expressed his inability to produce all the relevant documents. It was also pleaded that the defendant represented to the plaintiff that the original sale deed dated April 29, 1977 executed in his favor was in the possession of his employer in the Ministry of Post and Telegraphs, Parliament Street, New Delhi, against a loan taken by the defendant from his employer and unless the said loan amount was repaid, the sale deed would not be available. The plaintiff demanded the defendant to pay Rs. .20.000.00 which the defendant was liable to pay under the terms and conditions of the agreement.
(6) It was further pleaded that on or about 10th November, 1981, the plaintiff came to know that in or around August, 1981 the defendant had purchased a house bearing No. WZ-1597-A (Opposite to Punjab National Bank), Rani Bagh, New Delhi, for Rs. 60,000.00 and he had paid a total consideration amount for the purchase of the said house and the defendant and his family members are occupying the same. The plaintiff states that this act of the defendant made it clear that the representation made by the defendant to the plaintiff that he was not having sufficient money to repay the loan amount taken from his office to enable him to receive back the original sale deed is not correct and the defendant had made representation to the plaintiff and that by the said representation, the defendant knowingly, intentionally and maliciously made the plaintiff to believe his representation to her disadvantage and thereby the defendant has cheated the plaintiff. The plaintiff vide her advocate's notice dated 13th November, 1981 called upon the defendant to pay the said amount of Rs. 20.000.00 Along with interest thereon.
(7) In response to the said legal notice dated 13th November, 1981, the defendant vide his letter dated 28th November 1981 made wrong allegations that he had shown all the requisite documents to the plaintiff; that the plaintiff was not ready to honour her part of the said agreement; that the defendant was ready was and willing to execute the proper sale deed and in case the plaintiff ready to get the sale deed executed, she may inform the defendant by a telegram within seven days from the receipt of the defendant's letter dated 28th August, 1981. The plaintiff stated that the intention of the defendant asking for response by a telegram would clearly show that the defendant wanted to manipulate with the receipt of the telegram in as much as the defendant is working in telegraph office. The plaintiff responded immediately by Registered A.D. posts vide letter dated 5th December, 1981 followed by a telegram dated December 6, 1981 that the defendant filed to comply with the terms of the said agreement by failure to produce all the requisite documents before 7th August, 1981. The plaintiff also called upon the defendant to pay the said amount of Rs. 20,000.00 which the defendant failed to pay.
(8) It was on these averments that the aforesaid suit was filed. I am not giving the further details.
(9) The defendant was served with the summons in the prescribed form on 6th March, 1982.
(10) The plaintiff filed an application under the provisions of Order 37 Rule 2 Sub-rule (3). This application is dated 23rd March, 1982 but was filed on 24th March, 1982 in Court. In this application the plaintiff inter alias averred that the defendant's counsel has put in appearance only on 17th March, 1982 after 10 days from the date of service and thereforee since the appearance has been filed late, the plaintiff is entitled to get a decree for the sum claimed in the suit together with interest.
(11) On this application the learned trial Court directed notice to be given for the date already fixed. The next date fixed in the suit was 26th April, 1982.
(12) When this application came up for hearing, learned counsel for the defendant appeared and did not file any reply whatsoever to this application. It is specific ally noticed in the order of learned trial Court in paragraph 2 thereof and instead a plea was taken in the arguments that the address for service of the defendant as required under the provisions of Order 37 Rule 2 Sub-rule (3) was in fact filed on 15th March, 1982 i.e. within 10 days. The record of learned trial Court show in fact the address of service was filed on 17th March, 1982. The learned trial Court took pains to notice that no affidavit has been filed by the learned counsel or by the pendent to the effect that the address for service had been filed on 15th March, 1982. After considering the entire material, the learned trial Court came to the conclusion that the defendant had filed the address for service on 17th March, 1982 as shown by the court record and not on 15th March, 1982 as advocated by the learned counsel on behalf of the defendant.
(13) No prayer appears to have been made before the trial Court for condensation of delay, if any. The learned trial Court on finding that the appearance was filed late without any prayer for condensation of delay, decreed the suit.
(14) The present revision petition has been filed against this order of learned trial Court whereby the suit itself was de creed.
(15) This revision petition was filed on 2nd January, 1984, under Section 115 of the Code of Civil Procedure. The certified copy of the order of the trial Court shows that the copy itself was applied only on 22nd December, 1983 and it was ready on or about 23rd December 1983. Along with the revision petition, an application was filed purporting to be under Section 5 of the Limitation Act for condensation of delay in filing the revision petition. In this application, it was inter alias stated, that the petitioner had engaged one Miss Purnima Sethi, Advocate, to conduct the case on behalf of the defendant/petitioner. It was again pleaded in the application that appearance for service was put in on 15th March, 1982. It was further pleaded revision petition on 23rd May, 1983. The office had raised certain objections and had returned the same to the Advocate on 25th May, 1983. Miss Purnima Sethi took back the paper book from the registry of this Court on 25th May, 1983 and-thereafter it appears that she had not filed the petition again.
(16) It was further stated that in the meanwhile the plaintiff obtained a decree and applied for execution. When the petitioner came to know about the execution application, he again contacted his counsel Miss Purnima Sethi, she once again assured that she had filed the revision petition and the same was awaiting admission by this Court. However, in order to get execution's proceedings stayed temporarily, she had even filed an application duly supported by her own affidavit in the Court of Sh. R. N. Jindal on 25th November, 1983 wherein she had stated on oath that she had filed the revision petition in the High Court and the same was awaiting admission.
(17) It was also stated that the petitioner became nervous and he consulted some friends of whom, who advised him that the revision petition filed in May could not have been pending for such a long time for admission or that it must either have been,dismissed or admitted. The petitioner thereforee contacted another lawyer who made some enquiries from the registry and on or about 19th December, 1983 on the information gathered by him, the petitioner had come to the conclusion that Miss Purnima Sethi did not refile the revision petition after 25th May, 1983. That thereafter, the petitioner contacted Miss Sethi but she adopted very passive attitude The petitioner thereforee engaged another counsel to file the revision petition and the same has been filed without any delay on the reopening of the Courts after winter vacations.
(18) It was further stated that the petitioner has all along been vigilant and that he had engaged a counsel of a reasonable standing and thereforee he could not expect or foresee such conduct from her. The petitioner bona fide believed that Miss Purnima Sethi had filed the revision petition and the same was pending admission. The petitioner, on these allegations wants this Court to condone delay in filing the revision petition.
(19) The learned Single Judge of this Court issued notice on the revision petition and this application (C.M. No. 70 of 1984) under Section 5 of the Limitation Act.
(20) On notice being served, learned counsel for the respondent/ plaintiff filed affidavit both opposing the condensation of delay in filing the revision petition and also on merits.
(21) It is peculiar really that a note was given at page 7 of the grounds of revision to the following effect :
'THAT the petitioner has not filed any other revision, review or appeal or writ petition, against the impugned judgment or decree, either in this Hon'ble Court or before the Hon'ble Supreme Court of India, except the present one.'
This note is in direct conflict with the averments made in the application for condensation of delay.
(22) Even today no other material has been placed on record to show the filing of the revision petition through another counsel or its being returned back to that counsel.
(23) During the hearin'g of the revision petition, this Court had directed Miss Purnima Sethi to be summoned but apparently she has not been served.
(24) Apparently she had also filed an affidavit in the executing court stating that she bad filed the revision petition in the High Court which is still pending.
(25) It appears to me, in the circumstances, that it is a case of negli.gence on the part of the counsel in not re-filing the same in this Court as it was a part of the Court record and no litigant can be allowed to be suffered by such acts of the counsel.
(26) In the circumstances I find no necessity of personal examining the counsel.
(27) I would accept the Explanationn given by the petitioner and condone delay in filing the revision petition.
(28) Coming to the merits of the revision petition, it will be noticed that the plaintiff had filed an application stating inter alias that the defendant had been served on 6th March, 1982 and the address for service had been filed in the Court only on 17th March, 1982. No reply whatsoever was filed to the application. The defendant's counsel contended and argued that in fact the address for service was filed on 15th March, 1982. The trial Court, after examining the entire matter, refused to believe that the address for service was filed on 15th March, 1982.
(29) No grievance or rather any request was made to condone the delay, if any, under the provisions of Order 37 Rule 3 Sub-rule (7) of the Code of Civil Procedure. No plea for condensation of delay has been taken in the revision petition either. In the revision petition again, the plea that the appearance was filed on 15th March, 1982 was reiterated and re-emphasised. It is only during the hearing of the revision petition today that the learned counsel for the petitioner wanted this Court to exercise powers under Order 37 Rule 3 Sub-rule (7) of the Code of Civil Procedure.
(30) I am afraid, it is too late now to urge this ground for the first time before the Court sitting in exercise of revisional jurisdiction. Had this request been made in the trial Court and the trial Court declined to entertain the request, it may have been possible for this Court in exercise of revisional jurisdiction to examine this submission. But the new submission for the first time cannot be allowed to be urged during the hearing of the revision petition.
(31) One of the submissions made by Mr.Wadhwani was that the suit under Order 37 of the Code was incompetent.
(32) I am afraid, I do not agree with the submission of the learned counsel for the simple reason that the suit is based on a written agreement whereunder a part payment was made which contemplates a clause that in case of default by the seller, he would be liable to pay liquidated damages of Rs. 10,000.00 . No actual further losses are required to be proved by the purchaser. Under the circumstances, the suit was competent under the amended provisions of Order 37 of the Code of Civil Procedure particularly under Rule I Sub-rule (2) Clause (b) Sub-clause (1).
(33) There is no error of jurisdiction whatsoever in the impugned order. The revision petition accordingly fails and is dismissed.