Litigant Cannot Blame Counsel’s Negligence for Own Inaction: Delhi High Court Upholds ₹4.7 Lakh Decree

In a decisive ruling, the Delhi High Court dismissed an appeal against a decree passed in a summary suit under Order XXXVII CPC, holding that failure to seek leave to defend within the prescribed period automatically entitles the plaintiff to a decree. The Court further ruled that a litigant cannot evade liability by blaming their counsel’s alleged negligence.

Justice Girish Kathpalia, while dismissing RFA 125/2025, upheld the Trial Court’s judgment dated 07.02.2023 that decreed ₹4,70,000 in favor of the respondent, Hemant Verma, after the appellant, Joney, failed to file a leave to defend application. The Court also rejected the appellant’s plea to set aside the decree under Order XXXVII Rule 4 CPC, citing lack of merit.

"Service of Summons Proven—Non-Filing of Leave to Defend is Fatal"

The appellant contended that summons for judgment were not served, and therefore, the ex parte decree should be set aside. However, the Court dismissed this argument, stating:

"The summons for judgment were sent to the very address disclosed by the appellant while entering appearance under Order XXXVII CPC. The record clearly shows that the appellant’s father refused to accept service. No explanation has been offered for the failure to file leave to defend despite knowledge of the suit."

"Order XXXVII CPC Leaves No Room for Delay—Summary Procedure Must Be Followed Strictly"

The Court emphasized that summary suits under Order XXXVII CPC follow a strict procedural timeline, and failure to comply has severe consequences.

"Once a defendant fails to file leave to defend within the prescribed time, the plaintiff is automatically entitled to a decree. The Trial Court had no option but to decree the suit in favor of the respondent."

"Allegations Against Previous Counsel Cannot Be Used as an Excuse—No Absolute Right Under Order XXXVII Rule 4 CPC"

The appellant had also filed an Order XXXVII Rule 4 CPC application, seeking to set aside the decree on the ground that his previous counsel failed to act diligently. However, the High Court dismissed this plea, ruling:

"A litigant cannot claim an absolute right to relief under Order XXXVII Rule 4 merely by blaming their counsel. There is no evidence of misconduct by the previous counsel, and the appellant had ample opportunity to act but chose not to."

Citing Rajni Kumar v. Suresh Kumar Malhotra, (2003) 5 SCC 315, the Court reiterated that setting aside an ex parte decree under Order XXXVII Rule 4 requires the defendant to show ‘special circumstances’—mere allegations against counsel do not suffice.

After scrutinizing the Trial Court’s orders and procedural history, the High Court found no reason to interfere, stating:

"The appellant was fully aware of the proceedings yet failed to act. The decree was passed in accordance with law, and no special circumstances exist to warrant interference. The appeal is devoid of merit and stands dismissed."

This ruling reinforces the strict procedural discipline in summary suits under Order XXXVII CPC. It warns defendants against complacency, emphasizing that failure to act within the prescribed time will result in an automatic decree. The judgment also serves as a cautionary precedent for litigants who seek to escape liability by blaming their legal representatives.

Date of Decision: 11 February 2025