Himachal Pradesh High Court
Tirlok Singh Thakur vs Madan Singh Nirala on 20 December, 1999
Equivalent citations: AIR2000HP95
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. The present application has been made by the defendant. Madan Singh Nirala, under Order 37, Rule 4 read with Section 151, Code of Civil Procedure, for setting aside the decree dated 15-1-1999 passed in Civil Suit No. 83 of 1998. under Order 37, Rule 2(3). Code of Civil Procedure.
2. The facts giving rise to the present application are these. The plaintiff Tirlok Singh Thakur filed a suit against the defendant for the recovery of Rs. 5,33,750/- on the basis of an agreement dated 12-7-1998 under Order 37, Rule 1, Code of Civil Procedure. Summons of the suit as contemplated under Rule 2(2) of Order 37. Code of Civil Procedure dated 19-12-1998 were served on the defendant through his mother Smt. Shakuntla on 29-12-1998. In spite of having been so served, the defendant failed to put in appearance within the stipulated period of ten days. Consequently, in default of the defendant's entering appearance, the allegations in the plaint were deemed to be admitted and a decree for a sum of Rs. 5,33,750/- with costs along with interest at the rate of 18% per annum from the date of suit, that is, 30-11-1998, till the date of payment of the decretal amount was passed in favour of the plaintiff and against the defendant.
3. In seeking the setting aside of the decree dated 15-1-1999, the defendant has averred in paras 2 to 4 of his application as under :--
"2. That the applicant/defendant had been directed by the Hon'ble High Court to put his appearance within ten days or on as per the notice served upon defendant on 29-12-98 but the applicant failed to put his appearance on the said date that is 7-1-99 or within ten days for reasons beyond his control. The applicant had to come to Shimla in the morning of 7-1-99 from village Bazza, P.O. Jarol, Tehsil Kumarsain in order to put his appearance but was prevented as there was a heavy snow fall on that date. The applicant, while coming to Shimla had to cross through Narkanda but unfortunately the vehicular traffic was completely suspended on 7-1-99 due to snow fall. Since the notice served upon the applicant had mentioned that the case would be listed on 7-1-99 and time of 10 days for putting appearance was also expiring on 8-1-99, the applicant had decided to come to Shimla on 8-1-99.
3. That the applicant despite best of his efforts and endeavour could only manage to reach at Shimla in the High Court premises on 8-1-1999 about 4.30 p.m. There were no lawyers in the Court at that time and the applicant, thereafter consulted some officials of the High Court Registry regarding this case and was told that now the High Court had been closed on account of the Winter Vacations and now it would reopen on 22-2-99 and the regular civil matters will be taken after the vacations. The applicant under the bona fide belief that the case will be now listed after completion of holidays left Shimla on 9-1-99.
4. That the applicant again visited Shimla on 2-2-99 and engaged a counsel to defend his case. The applicant on 3-2-99 along with his counsel went to the High Court in order to know the fate of his case. It was revealed by the Registry of the High Court that the abovementioned case had already been decreed ex parte on 15-1-99. The applicant's counsel applied on the same day for certified copy of the said decree and procured the same on 22-2-99."
4. The application is being resisted by the plaintiff, who after having denied the averments of the defendant, has pleaded that the defendant has not been able to make out sufficient and reasonable grounds for setting aside the decree.
5. On the pleadings of the parties, following issues were framed on 4-5-1999 :--
1. Whether there are sufficient grounds for setting aside decree dated 15-1-1999 ?
2. Relief.
6. I have heard the learned counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under :
7. Issue No. 1 Rule 4 of Order 37, Code of Civil Procedure, provides :--
"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 defendants 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."
8. No doubt, Rule 7 of Order 37 prescribes that the procedure in suits triable under this Order shall be the same as the procedure in suits instituted in the ordinary manner, however, this is subject to the rules of special procedure as provided under this Order. Order 37, which is otherwise a self-contained Order deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, it also deals with the procedure to be followed if the defendant wishes to have a decree passed in such a summary suit, set aside.
9. Order 37, Rule 2 lays down that where the defendant to whom the summons has been issued to appear and seek leave to defend the suit, does not appear or if he appears and does not seek leave to defend the suit, the allegations in the plaint shall be deemed to have been admitted by him and the plaintiff shall be entitled to a decree.
10. The language used in Rule 2 of Order 37 does not postulate the passing of an ex parte decree as is provided under Order 9, Rule 6, Code of Civil Procedure. It is only when the defendant afterwards appears and establishes special circumstances that the Court may set aside the decree and grant leave to him to appear and defend the suit. The procedure set out in Rule 4 of Order 37 leaves no doubt that the provisions contained in Order 9, Rule 13, Code of Civil Procedure, can have no application to a decree passed in absentia of the defendant under Rule 3 of Order 37.
11. The words "special circumstances" occurring in Rule 4 of Order 37 and the words "sufficient ground" appearing in Order 9, Rule 13 are not synonymous and as such cannot be equated. The legislature in its wisdom has used the words "special circumstances" in Rule 4, of Order 37. Therefore, the gravity of reasons is higher in the case of "special circumstances". Under Rule 4, the defendant is obliged to explain the special circumstances which prevented him from appearing in Court and seek leave to defend the suit within time. In addition he has further to show that he has good, substantial and/or meritorious defence in the suit.
12. The High Court of Bombay in Harshad Shah v. Bhor Industries Ltd., (1998) 4 Man LJ 334, has held :--
"Order 9, Rule 13, CPC has no application for setting aside ex parte decree in summary suit. Specific provision is made under Order 37, Rule 4, CPC, whereunder the defendant has to show the special circumstances for setting aside ex parte decree passed in summary suit under Order 37, CPC. To spell out "special circumstances" the defendant has to first satisfy the Court that there was no due service of writ of summons or summons for Judgment or that he was prevented by sufficient cause from getting leave to defend and then secondly to show that he has good, substantial and/or meritorious defence in the suit. In the absence of satisfaction of first condition, it may not be necessary to go into second condition at all. Having not applied for leave to defend service of summons for judgment, it is not open to the defendant to now urge that he has substantial, meritorious and good defence in contesting the suit because in the very nature of claim made by the plaintiff under Order 37 or for that matter summary procedure prescribed under Order 37 could not be invoked. If a defendant deliberately or negligently sits over the matter after the service of summons for Judgment and does not apply for leave to defend and lets the Court pass decree ex parte, he cannot be permitted to derive premium for his deliberate omission or negligence and urge later in his application for setting aside such decree that he has good, meritorious and substantial defence in the suit. The power to set aside ex parte decree in summary suit cannot be exercised on the sole ground that the defendant has been able to demonstrate that there was sufficient cause of his failure to obtain leave to defend or when having obtained leave, he failed to appear, but defendant has to further show the merit of his defence. The two circumstances combined together may take out special circumstances as contemplated under Rule 4 of Order 37, CPC."
13. The above ratio was reiterated in Unilab Chemicals and Pharmaceuticals v. Smith Stanistreet Pharmaceuticals Ltd., (1999) 3 Comp LJ 389 : (1999 AIHC 2657) (Bom).
14. I am in agreement with the above decision of the High Court of Bombay. Under the provisions contained in Rule 4 of Order 37, the defendant is obliged to satisfy the twin conditions, namely, he was prevented by sufficient cause from putting in appearance and obtain leave to defend the suit, and, he has a good, substantial and/or meritorious defence in the suit, before a decree passed under Order 37, Rule 3, can be set aside and leave granted to him to defend the suit. Absence of any one of the two conditions would be sufficient to decline the prayer of the defendant under Order 37, Rule 4.
15. The first question, therefore, that arises for consideration is whether the defendant has been able to show "special circumstances" whereby he was prevented from putting in appearance in Court within the stipulated period and obtain leave to defend.
16. Though the defendant has averred in his application that he had started for Shimla on 7-1-1999 from his village, he could not reach Shimla as the entire vehicular traffic was completely suspended at Narkanda due to heavy snowfall, while appearing as AW 2 he has categorically admitted as under ;--
"No bus was held up at Narkanda due to snowfall since all the buses were diverted via Basantpur."
17. It is also in the statement of AW 1, Narain Singh, Incharge, Bus Stand Shimla, that on 7-1-1999, the bus from Thanedhar had reached Shimla late due to snow. In other words, the vehicular traffic was not suspended as claimed by the defendant. AW 1 has deposed about only one bus bearing No. HP-07-2813 belonging to HRTC, Unit No. 3, Shimla. He has admitted that there are buses belonging to other Depots/Units of the HRTC running between Narkanda and Shimla.
18. The evidence coming on record belies the stand taken by the defendant that he was prevented by heavy snowfall on 7-1-1999 in reaching Shimla.
19. Assuming for the sake of arguments that defendant could not reach Shimla on 7-1-1999, as alleged by him, nothing has come on the record as to why he could not reach Shimla In time on the following day, that is. 8-1-1999. The defendant has only stated that he reached Shimla on 8-1-1999 and that he reached the High Court only at 4.30 p.m. on that day. Nor reasons has been assigned by him for his late arrival, assuming that he did come to Shimla on 8-1-1999.
20. It is significant to note that the defendant, admittedly, was served on 29-12-1998. whereby he was called upon to put in appearance within ten days of the receipt of summons. No explanation is forthcoming as to why he didn't come to Shimla during the period 30-12-1998 to 6-1-1999 in order to put in appearance and obtain leave to defend the suit. If he had preferred to wait till the last day of limitation, then he is himself to be blamed. The defendant who was required to show special circumstances and explain his failure to put in appearance during the requisite period of limitation of ten days, has failed to show such special circumstances which prevented him from putting in appearance in Court during the period 30-12-1999 to 6-1-1999, assuming that he was prevented by snowfall from appearing in Court on 7-1-1999 and 8-1-1999 as claimed by him.
21. Since the defendant has failed to satisfy the very first condition, required to be satisfied under Rule 4, Order 37. Code of Civil Procedure, the existence or otherwise of the second condition loses its significance. The issue is as such decided against the defendant.
22. Relief As a result of the findings recorded under issue No. 1 above, the application is dismissed, leaving the parties to bear their own costs.