RAJNI KUMAR V. SURESH KUMAR MALHOTRA 2003 (3) SCALE 434 (S.S.M. QUADRI, J.)

RAJNI KUMAR V. SURESH KUMAR MALHOTRA 2003 (3) SCALE 434 (S.S.M. QUADRI, J.)

 

FACTS

• The appellant-tenant had taken on rent a residential flat from the respondent-landlord for a period of nine months under an agreement of lease on November 26, 1993. After the expiry of the term of tenancy, she continued to occupy the said premises as tenant till January 11, 1997.
• Alleging 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 under Order 37 of CPC, for recovery of Rs. 33,661.
• On the ground that summons for judgment was sent by registered post A.D. to the appellant the Court drew inference of deemed service and proceeded with the case and decreed the suit ex parte. The appellant filed an application under Rule 4 of Order 37 C.P.C. in the trial Court to set aside the ex parte decree. The application was dismissed as no special circumstances were stated to there being illegality in deeming service of summons. Aggrieved, the appellant filed revision High Court, which was also dismissed.

 

ISSUE

• 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.

 

HELD

The appeal was dismissed.

• Order 37 Rule 4 empowers the court under special circumstances 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: (i) to stay or set aside execution, and (ii) to give leave to the defendant (a) to appear to the summons, and (b) to defend the suit.
• The expression ‘special circumstances’ is not defined in C.P.C. nor is it capable of any precise definition by the court because the problems of human beings are so varied and complex. 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 extraordinary as to justify putting the clock back by setting aside the decree.
• There is a distinction between suits instituted in the ordinary manner and suits filed under Order 37.
• 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. In default of defendant’s 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, up to 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 form. Within 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.
• 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.
• 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.
• It is 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.
• 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.
• 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.
• Hence, there was no illegality.

 

COMMENTARY

“The expression "special circumstances" is not defined in Code of Civil Procedure nor is it capable of any precise definition by the court because problems of human beings are varied and complex. In its ordinary dictionary meaning, it connotes something exceptional in character, extraordinary significant and uncommon. It is an antonym of common, ordinary or general. lt is neither practicable nor advisable to enumerate such J 457 circumstances. The question can be decided on the facts and circumstances of each case and no rule of universal application can be laid down.”