Kumar Vs. Suresh Kumar Malhotra & Anr  Insc 192 (28 March 2003)
Shah Mohammed Quadri & Ashok Bhan.
out of S.L.P. (C) No.22588 of 2001) Syed Shah Mohammed Quadri, J.
this appeal, from the Judgment and Order of the High Court of Delhi in C.R.
No.138 of 2001 dated October 15, 2001, the short point that arises for
consideration is : whether the High Court committed jurisdictional error in
declining to set aside the ex parte decree on the application of the appellant
under Rule 4 of Order 37, on the ground that he failed to disclose facts
sufficient to entitle him to defend the suit.
facts relevant for the disposal of this appeal may be noted here.
appellant-tenant had taken on rent residential flat No.C 470, Sarita Vihar,
Ground Floor, New Delhi - 110 004, from the respondent-landlord for a period of
nine months under an agreement of lease reduced to writing on November 26,
1993. After the expiry of the term of tenancy she continued to occupy the said
premises as tenant till January
that the appellant did not pay the electricity and water consumption charges
for the period starting from November 26, 1993
to January 11, 1997, the respondent filed suit No.597
of 1997 in the Court of Senior Civil Judge, Delhi, under Order 37 of Code of Civil Procedure (C.P.C.), for recovery of
ground that on April 21, 1999 summons for judgment was sent by registered post
A.D. to the appellant pursuant to the order of the Court dated April 16, 1999
the Court drew inference of deemed service on him, proceeded with the case and
decreed the suit ex parte on August 12, 1999. The appellant, however, filed
application under Rule 4 of Order 37 C.P.C. in the trial court to set aside the
ex parte decree. On January
6, 2001, the
application was dismissed as no special circumstances were stated in the
petition both in regard to there being illegality in deeming service of summons
for judgment on the appellant as well facts sufficient to entitle him to defend
the suit. Aggrieved by the order of the trial court, the appellant filed
revision C.R.No.138 of 2001 in the High Court, which was also dismissed on October 15, 2001. That order of the High Court is
assailed in appeal before us.
learned senior counsel appearing for the appellant, strenuously contended that
there was no proof or record to show that any notice by registered post with
acknowledgment due was issued to the appellant by the respondent who had taken
the notice from the court but did not file any proof of issuing the notice to
the appellant, therefore, there was special reason for the appellant not to
appear in response to the summons for judgment. He argued that sufficient
amount was deposited with the respondent as advance and that Order 37 C.P.C.
was not applicable to the facts of the case, therefore, the appellant had good defence
to the suit. The trial court as well as the High Court, submitted Mr.Sharan,
erred in dismissing the application under Rule 4 of Order 37 C.P.C.
respondent appeared in-person and argued his case with precision and
perfection. He submitted that summons for judgment was issued on April 21, 1999
and that the court had rightly drawn presumption of service on the appellant;
that nowhere in her application had the appellant stated anything about her defence
to the suit and therefore the order under challenge was rightly passed by the
appreciate the contentions of the parties it would be useful to refer to Rule 4
of Order 37 C.P.C. which is in the following terms :
XXXVII -Summary Procedure (1) to (3) xxx xxx xxx (4) Power to set aside decree
- After decree the Court may, under special circumstances, set aside the
decree, and if necessary stay or set aside execution, and may give leave to the
defendant to appear to the summons and to defend the suit, if it seems
reasonable to the Court so to do, and on such terms as the Court thinks
fit." A careful reading of Rule 4 shows that it empowers, under special
circumstances, the court which passed an ex parte decree under Order 37 to set
aside the decree and grant one or both of the following reliefs, if it seems
reasonable to the court so to do and on such terms as the court thinks fit :
stay or set aside execution and
to give leave to the defendant (a) to appear to the summons and (b) to defend
expression 'special circumstances' is not defined in the C.P.C. nor is it
capable of any precise definition by the court because problems of human beings
are so varied and complex. In its ordinary dictionary meaning it connotes
something exceptional in character, extra-ordinary, significant, uncommon. It
is an antonym of common, ordinary and general.
neither practicable nor advisable to enumerate such circumstances. Non-service
of summons will undoubtedly be a special circumstance. In an application under
Order 37, Rule 4, the court has to determine the question, on the facts of each
case, as to whether circumstances pleaded are so unusual or extra ordinary as to
justify putting the clock back by setting aside the decree; to grant further
relief in regard to post-decree matters, namely, staying or setting aside the
execution and also in regard to pre decree matters viz., to give leave to the
defendant to appear to the summons and to defend the suit.
considering an application to set aside ex parte decree, it is necessary to
bear in mind the distinction between suits instituted in the ordinary manner
and suits filed under Order 37 C.P.C. Rule 7 of Order 37 says that except as
provided thereunder the procedure in suits under Order 37 shall be the same as
the procedure in suits instituted in the ordinary manner.
of Order 37 specifically provides for setting aside decree, therefore,
provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37.
In a suit filed in the ordinary manner a defendant has the right to contest the
suit as a matter of course. Nonetheless, he may be declared ex parte if he does
not appear in response to summons, or after entering appearance before framing
issues; or during or after trial.
addressing arguments is part of trial, one can loosely say that a defendant who
remains absent at the stage of argument, is declared ex parte after the trial.
In an application under Order 9 Rule 11, if a defendant is set ex parte and
that order is set aside, he would be entitled to participate in the proceedings
from the stage he was set ex parte. But an application under Order 9 Rule 13
could be filed on any of the grounds mentioned thereunder only after a decree
is passed ex parte against defendant. If the court is satisfied that (1)
summons was not duly served, or (2) he was prevented by sufficient cause from
appearing when the suit was called for hearing, it has to make an order setting
aside the decree against him on such terms as to cost or payment into court or
otherwise as it thinks fit and thereafter on the day fixed for hearing by
court, the suit would proceed as if no ex parte decree had been passed. But in
a suit under Order 37 the procedure for appearance of defendant is governed by
provisions of Rule 3 thereof. A defendant is not entitled to defend the suit
unless he enters appearance within ten days of service of summons either in
person or by a pleader and files in court an address for service of notices on
him. In default of his entering an appearance, the plaintiff becomes entitled
to a decree for any sum not exceeding the sum mentioned in the summons together
with interest at the rate specified, if any, upto the date of the decree
together with costs. The plaintiff will also be entitled to judgment in terms
of sub-rule (6) of Rule 3. If the defendant enters an appearance, the plaintiff
is required to serve on the defendant a summons for judgment in the prescribed
ten days from the service of such summons for judgment, the defendant may seek
leave of the court to defend the suit, which will be granted on disclosing such
facts as may be deemed sufficient to entitle him to defend and such leave may
be granted to him either unconditionally or on such terms as the court may deem
fit. Normally the court will not refuse leave unless the court is satisfied
that facts disclosed by the defendant do not indicate substantial defence or
that defence intended to be put up is frivolous or vexatious. Where a part of
the amount claimed by the plaintiff is admitted by the defendant to be due from
him, no leave to defend the suit can be granted unless the admitted amount is
deposited by him in Court.
as Order 37 does not speak of the procedure when leave to defend the suit is
granted, the procedure applicable to suits instituted in the ordinary manner,
important to note here that the power under Rule 4 of Order 37 is not confined
to setting aside the ex parte decree, it extends to staying or setting aside
the execution and giving leave to appear to the summons and to defend the suit.
We may point out that as the very purpose of Order 37 is to ensure an
expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers
the court to grant leave to the defendant to appear to summons and defend the
suit if the Court considers it reasonable so to do, on such terms as court
thinks fit in addition to setting aside the decree. Where on an application,
more than one among the specified reliefs may be granted by the Court all such reliefs
must be claimed in one application. It is not permissible to claim such reliefs
in successive petitions as it would be contrary to the letter and spirit of the
provision. That is why where an application under Rule 4 of Order 37 is filed
to set aside a decree either because the defendant did not appear in response
to summons and limitation expired, or having appeared, did not apply for leave
to defend the suit in the prescribed period, the court is empowered to grant
leave to defendant to appear to the summons and to defend the suit in the same
application. It is, therefore, not enough for the defendant to show special
circumstances which prevented him from appearing or applying for leave to
defend, he has also to show by affidavit or otherwise, facts which would
entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is
different from Rule 13 of Order 9.
adverting to the facts of this case, though appellant has shown sufficient
cause for his absence on the date of passing ex parte decree, he failed to
disclose facts which would entitle him to defend the case. The respondent was
right in his submission that in the application under Rule 4 of order 37, the
appellant did not say a word about any amount being in deposit with the
respondent or that the suit was not maintainable under Order 37. From a perusal
of the order under challenge, it appears to us that the High Court was right in
accepting existence of special circumstances justifying his not seeking leave
of the court to defend, but in declining to grant relief since he had mentioned
no circumstances justifying any defence.
this view of the matter, we do not find any illegality much less jurisdictional
error in the order under challenge to warrant interference of this Court.
Inasmuch as having regard to the provisions of Section 34 of the C.P.C. and the
facts of the case that the liability does not arise out of a commercial
transaction, we are of the view that the grievance of the appellant with regard
to rate of interest is justified. We, therefore, reduce the rate of interest
from 18 per cent to 6 per cent per annum.
directed the appellant to deposit the decree amount to serve as security for
the suit amount in the event of this Court granting him leave to defend the
suit. Since that relief is not granted to him, it will be open to him to
withdraw the said amount or have it adjusted in satisfaction of the decree.
to above modification of the order of the trial court as confirmed by the High
Court the appeal is dismissed.