Delhi High Court
Manjari vs Ranjit Singh on 29 November, 2006
Equivalent citations: (2007)146PLR15
Author: T.S. Thakur
Bench: T.S. Thakur, S.L. Bhayana
JUDGMENT T.S. Thakur, J.
1. This appeal arises out of a judgment and decree dated 15.2.2006 passed by the Additional District Judge, Delhi in a suit under Order 37 of the C.P.C. for recovery of a sum of Rs.6,72,000/- and an order dated 18.7.2006 passed under Order 37 Rule 4 of the C.P.C. declining to set aside the said decree.
2. The plaintiff respondent claimed a decree for a sum of Rs.6,72,000/- with interest @ 12% p.a. in a suit under Order 37 of the C.P.C. filed against the defendant-appellant. The defendant, it appears, was served by publication of a notice in "Statesman" in its issue dated 22.12.2005. Since the defendant did not enter appearance within the stipulated period of 10 days as required under Order 37 Rule 2(3) of the C.P.C, the Trial Court proceeded to decree the suit in terms of judgment and decree dated 15.2.2006 treating the averments made in the plaint to be admitted. The defendant, thereafter, made an application under Rule 4 of Order 37 of the C.P.C. for setting aside the aforementioned judgment and decree on the ground that service of summons upon him was not in accordance with law. Relying upon the decision of this Court in Hans Raj v. Lakhi Ram , it was contended by the defendant before the Trial Court that service by publication was not complete in a suit under Order 37 unless a copy of the plaint was also published along with the summons. That contention found favor with the Trial Court, who recorded a clear finding to the effect that service of summons upon the defendant-appellant was not in accordance with law. Having said so, the Trial Court proceeded to hold that the decree passed by it could not be set aside as the defendant-appellant had not raised any friable issue upon which he could claim the leave to defend the suit. The defendants' application under Order 37 Rule 4 was on that finding dismissed by the Court below by its order dated 18.7.2006. The appellant has, as noticed earlier, appealed to this Court against the aforementioned two judgments and orders.
3. We have heard the learned Counsel for the parties at some length and perused the orders under challenge
4. The finding recorded by the Trial Court that the service effected upon the defendant-appellant herein was not in accordance with law has not been assailed before us by the plaintiff-respondent. That being so, the only question that falls for our consideration is whether the Trial Court was justified in refusing to exercise its powers under Order 37 Rule 4 of C.P.C. even after it came to the conclusion that the defendant had not been properly served. The Trial Court has, as noticed above, declined to invokve its powers on the ground that the defendant-appellant had not raised any friable issue. It has, in support of that line of reasoning, relied upon a decisions of the Supreme Court in Rajni v. Suresh . We have gone through the said decision but find it difficult to hold that the same interprets the provision of Order 37 Rule 4 in the manner understood by the Trial Court. That was a case in which the defendant was served by registered A.D. where after an application under Order 37 Rule 4 of the C.P.C. was filed seeking an order setting aside the ex pane decree. This application was dismissed by the Trial Court on the ground that the same did not disclose any special circumstance to warrant an order under Rule 4 of Order 37 of C.P.C. The High Court before whom the said order was challenged also agreed with the Trial Court and dismissed the revision petition filed against the said order. In a further appeal before the Supreme Court, Their Lordships held that non-service of summons will undoubtedly be a special circumstances within the meaning of Rule 4 of Order 37 of C.P.C. Having said so, Their Lordships also observed that if in an application, more than one relief could be granted by the Court, all such reliefs must be claimed by the party concerned. The Court declared that it was impermissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. The Court observed:
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 possible to claim such reliefs in succsssive 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 this 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 Order 37 is different from Rule 13 of Order 9.
5. It is evident from the above that the situations in which the law expects the party concerned to seek all the reliefs available to it have been limited to only two classes of cases viz. one where the defendant did not appear in response to summons and the period of limitation for doing so expired and the second where having appeared, the defendant did not pray for any leave to defend the suit within the prescribed period. In either of these cases, the Court could grant leave to the defendant to appear in response to the summons and to defend the suit in the same application which ought to raise friable issues to justify grant of leave. That is not, however, the position before us. We are dealing with a case where the service of summons upon the defendant was itself defective. In such a case, the Court passing an ex parte decree can and is indeed bound by law and equity both to set aside the decree passed by it. It would be unnecessary in any such case for the defendant to go a step further and not only establish that he had not been served with summons but also that he had a friable issue to raise in the suit. The occasion for raising a friable issue would arise only if the ex parte decree is first set aside and the defendant relegated back to the position where he can make an application for grant of leave to defend. It would be premature to require the defendant to show whether or not he has a friable issue to raise at a stage at which he was yet to get rid of the ex parte decree. That is precisely what the Trial Court appears to have done in the present case. Instead of invoking its powers under Order 37 Rule 4 of the C.P.C. and setting aside the ex parte decree, the Court appears to have prematurely demanded the existence of friable issues. That approach was not in our view legally correct and has resulted in miscarriage of justice.
6. In the result, we allow this appeal, set aside the impugned judgment and decree dated 15.2.2006 and order 18.7.2006 and remand the suit back to the Trial Court with the direction that the appearance entered by the defendant Along with the suit under Order 37 Rule 4 shall be deemed to have been entered on 8.1.2007 with liberty to the plaintiff-respondent to serve a summon for judgment in the prescribed manner within the period stipulated for the purpose under Order 37 Rule 3(4). Upon service of any such summons, the defendant shall be free to make an application seeking leave to defend the suit which the Trial Court shall examine and dispose of in accordance with law. Parties are directed to appear before the Trial Court on 8.1.2007.
No costs.