Gujarat High Court
Madhur Garments vs Hasmukh Shopping Centre And Ors. on 7 October, 1998
Equivalent citations: (1999)2GLR1580
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. By this revision application under Section 115 of the C.P.C., the petitioner challenges the order dated 28-2-1997 of the City Civil Court No. 18, Ahmedabad passed below Ex. 1, Restoration Application No. 792 of 1995. Under this order, the learned trial Court set aside the judgment and decree dated 22-9-1994 passed in Summary Suit No. 2610 of 1993 and the suit is ordered to be restored to the file. The respondents were directed to file a written statement within 10 days from the date of the order. It is not in dispute that in pursuance of the order of the trial Court, the respondents have already filed written statement in the suit.
2. The facts of the case, in brief are that the original plaintiff-petitioner filed Summary Suit No. 2610 of 1993 against the defendant-respondent for the recovery of Rs. 52,974/-. The defendants-respondents filed their appearance through their Advocate and furnished solvent security of Rs. 55,000/- as per the order of the Court. Thereafter, the plaintiff-petitioner has taken out summons for judgment on 24-6-1992. The matter was kept for hearing on 7-7-1994. On which date, the learned Advocate for the defendants-respondents sought time for filing the application for leave to defend and the matter kept on 22-9-1994. On the said date the learned Advocate for the defendants-respondents did not remain present in the Court and hence the Court passed ex-parte decree for Rs. 51,793/-. The plaintiff-petitioner thereafter filed Precept Application under Section 46 of the C.P.C. before the trial Court on 10-4-1995. The Court has issued precept of Rs. 75,000/- on 20-3-1995. It is the case of the defendants-respondents that the plaintiff-petitioner has got attached goods from their shop that worth Rs. 5,91,000/- though the order for precept was only for Rs. 75,000/ -. The defendants-respondents filed an application for setting aside of the ex-parte decree passed in the suit. That application resisted by the plaintiff-petitioner and under the impugned order the said application has been granted by Court below. Hence this revision application.
3. The learned Counsel for the plaintiff-applicant contended that the defendants-respondents have the notice of the suit and they put the appearance in the suit through Advocate but neither they present nor their Advocate was present though an application for leave to defend has been filed. The learned trial Court has no other option but to decree the suit ex-parte. It is what the learned Counsel for the petitioner contended that technically it cannot be said to be an ex-parte decree. It is next contended that under Rule 4 of Order 37 of the C.P.C, the Court under special circumstances may set aside the decree and may grant 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. The learned Counsel for the plaintiff-petitioner contended that the defendants-respondents failed to give any special circumstances before the Court below justifies setting aside of the decree and leave to the defendants-respondents to appear to the summons and to defend the suit.
4. Replying to the contentions raised by the learned Counsel for the plaintiff-petitioner, the learned Counsel of the defendants-respondents contended that the Counsel for the defendants-respondents could not appear on the date fixed in the case due to unavoidable circumstances and for his absence the party should not be allowed to suffer. The defendants-respondents have engaged Counsel and they were under the bona fide belief that the Counsel shall properly and effectively defend them. But if the Advocate could not appear in the Court for his own reasons, they should not suffer. It is a case where this is a special circumstance of which the indulgence has been taken and the ex-parte decree passed has rightly been set aside by the trial Court. In case, the order passed by the trial Court is set aside by this Court, it will cause prejudice to the defendants-respondents. It is next contended that otherwise also the learned trial Court has considered it a fit case where the ex-parte decree has been set aside to which no exception can be taken. Moreover, the learned trial Court, rightly observed, that the decretal amount has already been recovered by the plaintiff-petitioner and in case the ex-parte decree is set aside, it will not cause any prejudice to him.
5. In the present case, I do not consider it to be appropriate to go on and decide whether the decree passed by the Court below is an ex-parte decree or not. However, there is no dispute on the fact that on the date on which the decree was passed by the trial Court neither the defendants-respondents nor their Counsel was present. The Rule 4 of Order 37 of the C.P.C. empowers the Court to set aside the decree under special circumstances. It further empowers the Court if necessary to 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. The special circumstances has not been defined in this provision. In the present case, though the defendants-respondents have done whatever expected to be and required to be done on their part, i.e., they engaged an Advocate to defend them in the Court in the suit. It is not out of contest to say that in pursuance of the order of the Court the defendants-respondents furnished the solvent surety of Rs. 55,000/-. An application for grant of leave to defend the suit has also been filed and if he go by the provisions of Order 37 of C.P.C. only after the said application is granted, the presence of the defendant-respondents may be necessary for filing of the written statement. Till that stage reaches, I find sufficient reasons and justification in the act by the defendants-respondents not to remain present in the Court. It is a fact on which the learned Counsels for the parties are not at variance that on the last date on which the decree has been passed by the trial Court, the Counsel for the defendants-respondents was not present in the Court. The reasons given for non-presence of the Counsel for the defendants-respondents have also not been controverted by the plaintiff-petitioner. The reasons given for the absence of the Counsel for defendant-respondent due to his personal difficulty stand controverted. It is also not in dispute that the decretal amount has also been recovered by the plaintiff-petitioner. In view of these facts, the grant of the permission to grant leave to defend the suit also may not be difficult for the Court. It is true that in the summary suit, normally the Court grants leave to defend to the defendant on some conditions and one of the conditions could have been or should have been of payment of the amount claimed in the suit. That is the extreme condition which the Court may impose in the summary suit, while granting the leave to defend to the defendant. In the present case, at the cost of the repetition, I have to state that the decretal amount has been recovered by the plaintiff-petitioner and coupled with the facts that on the last date of the hearing the Counsel for the defendants-respondents could not remain present in the Court due to his personal difficulty, it has rightly been taken to be a special circumstance and the learned trial Court has not committed any illegality much less a jurisdictional error in taking it to be in the interest of justice to set aside the decree passed by it. Section 115 of the Code gives revisional powers to this Court where subordinate Court appears:
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
6. The present is the case which does not fall under Clause (a) or (b) of Sub-section (1) of Section 115 of the Code. Clause (c) of Sub-section (1) of Section 115 of the Code only available where it appears that the subordinate Court has acted in exercise of its jurisdiction illegally or with material irregularity. This illegality or material irregularities should have a direct nexus to the exercise of the jurisdiction by the subordinate Court. Rule 4 of the Order 37 of Code empowers the Civil Court to set aside the decree passed by it in a summary suit where a case of special circumstance is made out to its satisfaction. So, it cannot be said that the Civil Court has no jurisdiction in summary suit in setting aside the decree passed by it. The said power vested in it and where in the given facts of the case, it set asides the ex-parte decree it cannot be said that the learned trial Court has acted in exercise of its jurisdiction illegal or with material irregularity which calls for the interference of this Court in its revisional jurisdiction as conferred upon it under Section 115 of the Code. After the amendment of the C.P.C. in the year 1976, a further rider has been put on the revisional powers of this Court. Proviso to Sub-section (1) of Section 115 of the Code provides that this Court shall not under this section vary or reverse any order made, or any order deciding an issue, in the course of a suit or the proceedings except where:
(a) the order, if it had been made in favour of the party applying for the revision would have finally disposed of the suit or other proceedings, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
So, not only the case of the revisionist does fall under any of the Clauses (a), (b) & (c) of Sub-section (1) of Section 115 of Code, but in addition to this, Court can only interfere where the impugned order is allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. In this case, the decretal amount has already been recovered by the plaintiff-petitioner and in case the defendants-respondents are given the opportunity to contest the case on merits, otherwise also it will not result in causing any irreparable injury or would occasion a failure of justice to the revisionist. The trial Court has passed just, reasonable and equitable order to which no interference is called for of this Court, more so under its revisional powers as conferred upon it under Section 115 of the Code.
In the result, this revision application fails and the same is dismissed. No order as to costs. Interim relief, if any, granted by this Court in this case stands vacated.