Andhra HC (Pre-Telangana)
Karumilli Bharathi vs Prichikala Venkatachalam on 28 April, 1999
Equivalent citations: 1999(3)ALD366, 1999(3)ALT407, AIR 1999 ANDHRA PRADESH 427, (2000) 1 CIVILCOURTC 52, (1999) 3 ANDHLD 366, (1999) 3 ANDH LT 407
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. CRP No. 3871 of 1998 was filed by the defendant challenging the order dated 2-7-1998 passed by the senior Civil Judge, Tadipalligudem in IA No.486 of 1998 in OS No. 73 of 1997. IA No.476 of 1998 was filed under Section 5 of the Limitation Act to condone the delay of 176/ 197 days in filing the pclition to set aside the decree passed in a summary suit under Order 37 of CPC. The trial Court dismissed it. The Civil Revision Petilion filed by the defendant was allowed by me condoning the delay on a costs of Rs.1,000/- vide my judgment dated 19-11-1998. The respondent-plaintiff has filed the present review petition seeking review of the order dated 19-11-1998 passed in CRP No.3875/1998.
2. Learned Counsel appearing for the petitioner strenuously contended that this Court has condoned the delay but without repelling the reasons given by the Court below in not accepting the cause sought to be made out by the defendant. Therefore, he submitted that there is an error apparent on the face of the record inasmuch as this Court has not given the reasons as to how the defendant has made out sufficient cause for condonation of delay in filing the petition to set aside the ex parte decree. He relied upon some of the judgments of the Supreme Court as to the meaning of sufficient cause etc. He further submitted that under Order 37 Rule 4 CPC, what is required to be explained by the defendant for selling aside the ex parte decree is 'special circumstance' but not 'sufficient cause', and there is a distinction between these two clauses. But the lower Court and also this Court proceeded on the basis that the defendant has made out sufficient cause. He further submitted that by applying the principle of 'sufficient cause' instead of applying the principle of 'special circumstance', the Court passed the order under review and as such, an error has crept in and this is an error apparent on the face of the record. Therefore, the order of this Court requires to be reviewed.
3. On the other hand, the learned Counsel appearing for the respondent-defendant contended that this is not a fit case for review since this Court has condoned the delay of imposing costs of Rs. 1,000/- on the ground that the petitioner has made out sufficient cause. He further submitted that for an ex porte decree passed in summary proceedings under Order 37, Rule 4 CPC, the limitation that applies is one provided under Article 137 of the Limitation Act and such limitation is 3 years and if the three years as is taken into account, the present application filed by the defendant to set aside the ex parte decree was within the time. Therefore, neither Article 123 of the Limitation Act, nor Order 9 Rule 13 of CPC applies to the case. Hence, the period of 30 days limitation is not applicable. He relied upon some judgments. He further submitted that at any rate there is no error apparent on the face of the record and assuming that there is illegality in the order, that could not be a ground for review. The petitioner and respondents cited number of judgments and I will consider them during the course of this order with reference to the relevant point.
4. On the basis of the arguments addressed on both sides, the following points arise for my consideration :
(1) Whether there is error apparent on the face of the order dated 19-11-1998 for the reason that the principle of 'sufficient cause' was applied instead of principle of 'special circumstance'?
(2) What is the Article of the Limitation Act that is applicable, for the purpose of filing an application under Order 37, Rule 4 CPC to set aside the ex parte decree or whether Article 137 of the Limitation Act applies for setting aside the ex part? decree passed under Order 37, Rule 4 CPC, or whether Article 123 of the Limitation Act applies to such situations ?
5. Before I take up the points for consideration, 1 have to note fairly what transpired in the Court on 19-11-1998. Counsel for the petitioner-defendant was ready to argue the case. But a pass over was asked on behalf of the respondent-plaintiff contending that the senior Counsel was engaged in some other Court. Since this matter was adjourned on number of occasions, I refused to pass over and heard the Counsel for the petitioner. At the same time, the junior Counsel appearing for the respondent-plaintiff submitted that the impugned order does not call for interference. Taking that ends of justice would be met by condoning the delay of about 176/197 days, in filing the petition to set aside the ex parte order, I condoned the delay by allowing the revision petition vide my order dated 19-11-1998. I took into consideration the fact that ex parte decree was passed immediately after the dale of appearance of the defendant in the suit after receipt of summons. I also took into consideration that the defendant was suffering from jaundice and as such petitioner's case could be accepted by imposing costs of Rs.1,000/-. I kept in mind the guiding principle that justice should not be denied on technical grounds. But at the same time, I applied the principle of 'sufficient cause' since the trial Court had given reasons to hold that the defendant has not made out sufficient cause for setting aside the ex parte decree. The fact that the principle of 'special circumstance' found under Order 37 Rule 4 CPC was not brought to my notice by the learned Counsel appearing for the petitioner. Having regard to these circumstances, I have to proceed to consider the point No.1 raised before me.
Order 37, Rule 4 CPC reads as under :
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."
From reading of the above rule, it is clear that after the decree is passed under Order 37, by adopting summary procedure, if the defendant makes out a special circumstance and if the Court considers it to be reasonable, the Court may set aside the decree passed ex parte. Under this rule what is to be made out by the defendant is 'special circumstance' but not 'sufficient cause'. Order 9 Rule 13 of CPC is also a similar provision provided for setting aside the decree ex parte in a suit instituted in accordance with ordinary procedure. Under that order if the defendant satisfied the Court that he was prevented by any sufficient cause from appearing, when the suit was called on for hearing, the Court may set aside the ex parte decree passed against him, on such terms as to costs etc., Thus, from a reading of Order 9 Rule 13 CPC it is clear that what is to be made out under that order is that the defendant was prevented by sufficient cause But Order 37 of CPC is a special procedure to try a suit by adopting summary procedure in certain matters. For the suits filed under Order 37 of CPC, the entire procedure found under Order 37 has got to be followed. The said Order 37 Rule 7 CPC reads as under :
"7. Procedure in suits : Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner."
From this rule, it is clear that so far as summary suits are concerned, the procedure laid down under Order 37 shall be followed and regarding the matter for which no procedure is prescribed under Order 37 of CPC, the other provisions of the CPC may be followed. Since Order 37 Rule 4 of CPC specifically provides the procedure to set aside ex parie decree to that extent Order 9, Rule 13 CPC stands excluded.
Therefore, the principle of 'sufficient cause' found under Order 9 Rule 13 CPC cannot be imported into Order 37, Rule 4 of CPC and what is to be looked into is whether the defendant has made out a 'special circumstance' in terms of Order 37 Rule 4 CPC.
6. The Courts in India have clearly distinguished the two phrases, and they have held that 'special circumstance' found under Order 37 Rule 4 CPC is not synonymous with the 'sufficient cause' found under Order 9 Rule 13 CPC or under Section 5 of the Limitation Act. For instance, in the decision reported in Mohan Lal v. Out Prakash, , the High Court of Rajasthan, distinguished 'sufficient cause' from 'special reason'. It held thai the case set up by the defendant for setting aside the ex parte decree, that the plaintiff assured that there would be settlement, therefore, he did not appear on the day fixed, could constitute 'sufficient cause' in terms of Order 9, Rule 13 CPC, but not 'special reason', as envisaged under Order 37, Rule 4 CPC. In another judgment reported in Rahini Rov v. Jethmull Bhojraj, , the High Court of Calcutta held that defendants in the case did not make out 'special circumstances'. The facts of that case reveal that the defendants did not furnish security to the extent of Rs.30,000/- to the satisfaction of Registrar within one month, nor even after giving two time cxtentions and as such ultimately an ex parte decree was passed on 8-9-1997, when the mailer appeared in pre-emptory list. The Court held that the defendants therein did not explain their absence and their inaction when they had equal opportunity, ultimately held that the defendants did not make out 'special circumstances' for setting aside the ex parte decree. The High Court of Jammu and Kashmir in the decision reported in Subhash Raina v. Suraj Parkash, AIR 1977 J&K 30, aiso had an occasion to consider the distinction between "special circumstances" and "sufficient cause", it held that the defendant did not make out 'special circumstances' in his plea that he was busy at Phillaur and was undergoing training and as such he could not be present on the day when he was required to seek leave to defend the suit within time, by observing as under :
"7. Coming to the question of special circumstances as envisaged by Rule 4 it is noticed that no special circumstances can be said to be established from the averments made in the application itself- There is difference between "special circumstance" occurring in Rule 4 and "sufficient cause" occurring in Rule 14 of Order 9. 'Special Circumstance' is not synonymous with 'sufficient cause'. Under Rule 4 the defendant has to explain the special circumstance which prevented him from appearing in the Court and seek leave to defend the suit within time. In the instant case no special circumstance entitling the defendant to claim benefit under Order 4 has been set up. The mere fact that the defendant petitioner was busy at Phillaur and was undergoing training there, would not have prevented him from engaging an attorney or a lawyer and instructing him to appear on his behalf and seek leave to defend the suit, or at any rate Phillaur being not a far off place from Jammu, he could have boarded the train during night and come over to Jammu on a holiday and after briefing his Counsel should have returned to that place. The defendant wilfully remained absent and inspite of service did not either personally or through agent or through a lawyer care to make his appearance and seek leave to defend the suit.
8. For the foregoing reasons, 1 am, therefore, not inclined to accede to the request of the defendant that the decree be set aside against him."
From the above judgments I find that the High Courts in India have attempted to distinguish the phrases "special circumstances" found under Order 37 Rule 4 and 'sufficient cause" found under Order 9 Rule 13 CPC. I am not able to lay hands on any judgment, nor any such judgment has been brought to my notice, as to the exact distinction between these two phrases. However, from the judgments noted above, it is certain that the reasons offered to explain the special circumstances, should be such that a person absolutely had no possibility of appearing before the Court on a relevant day. For instance, there was a strike and all the buses were withdrawn and there was no other mode of transport, so as to go from, the place he resides to the place where the Court is situated, may constitute "special circumstances". But if he were to plead that the bus he wanted to board, he missed it and as such he could not appear before the Court, may constitute "sufficient cause", but not a 'special circumstance', since it is not his case that there was no other mode of transport, enabling him to reach the Court on the date he was required to be present in the Court. Thus a 'special circumstance' would take with it a 'cause' or 'reasons', which prevents a person in such a way that it almost impossible for him to attend the Court or to perform certain acts which he is required to do. Thus the 'reason' or 'cause' found in "special circumstances" is more strict or more stringent than in "sufficient cause". What would constitute 'special circumstances', would depend upon the facts of each case. Making out of special circumstances (for the purpose of setting aside the ex parte decree) may constitute a 'sufficient cause', but not vice versa. This inference I am drawing from the way 'special circumstance' has been interpreted by the different High Courts in India. Therefore, what has to be seen for setting aside in ex parte decree. Under Order 37, Rule 4 CPC is whether the defendant has made out "special circumstance" for his non-appearance on the day when he was required to appear before the Court, either to seek the leave to defend the suit or to comply with the directions of the Court.
7. Keeping the above principle in mind, now I consider the case on hand. By the impugned judgment and order, the trial Court refused to set aside the ex parte decree on the ground that defendant has not made out sufficient cause, by pleading that he was suffering from Jaundice, Even in the revision, I also applied the principle of 'sufficient cause' and held that the petitioner has made out sufficient cause and the sufficient cause could be accepted by imposing costs of Rs.1,000/-. From this it follows that the entire approach of the Court below and the approach I adopted, on the basis of the arguments of the Counsel for the petitioner was erroneous. The Counsel for the petitioner did not focus my attention under Order 37, Rule 4 CPC, so as to see whether the defendant has made out the special circumstances for the purpose of setting aside the ex parte decree. In this view of the matter, I find that there is an error apparent on the face of the record.
8. There is another aspect to be considered in this case, regarding the limitation, whether the period of thirty days applies or whether the period of three years applies to the facts of this case. The learned Counsel appearing for the petitioner contended that since the period of limitation of three years applies to this case, there was no delay in filing the present petition and there was no question of making out 'special circumstances' or "sufficient causes' for the condonation of delay. The Court below found that there was a delay of about 197 days in filing the application to set aside the ex parte decree, by applying a limitation of 30 days. But it is Article 137 of the Limitation Act that applies lo his case, as held by the High Court of Bombay in P.N. Films Ltd. v. Overseas Films Corpn. Ltd., , and as such, the period of limitation would be three years, but not thirty days, as pleaded by the plaintiff-respondent, and if the period of three years is taken, there would not be any delay in tiling the petition for setting aside the ex parte decree. On the other hand, the learned Counsel for the plaintiff-respondent contended that it is an ex parte decree in terms of Order 9 Rule 13 and the defendant should file an application within thirty days. Therefore, there was delay and accordingly, the defendant rightly sought for the condonation of delay by filing an application under Section 5 of the Limitation Act and now the Counsel for the defendant cannot say that the period of limitation is three years.
9. I have carefully gone through the judgment of the Bombay High Court cited in P.N. Films Ltd, v. Overseas Films Corpn. Ltd., (supra). The High Court of Bombay by analysing the old Order 9, Rule 6 CPC and also Article 164 of the Limitation Act, opined that the word "ex parte" should be given usual or natural meaning of the term, that a case is decided in the 'absence' of the other party and the order or decree passed against the parly which was not present, is an ex parte decree or an ex parte order. But the said judgment of the Bombay High Court suddenly focusscd its attention to other aspects, staling that in a summary suit ex parte decree could be passed, when the defendant docs not seek leave of the Court therefore, for this kind of ex parte decree, there is no provision in the Limitation Act and as such Article 181 (present Article 137) would apply to such cases, I think it appropriate to extract the relevant part of the said judgment as under:
"In our opinion, even giving to the expression 'ex parte' its plain natural meaning, the expression 'ex parte' does carry with it the connotation that a Court or a Judge or a Tribunal has proceeded in the absence of other party when it could have had the other party before it or when it was not prevented by law from having the other party before it. But perhaps it is better to decide this point on the other aspect of the matter. Both the Law of Limitation and the Civil Procedure Code are procedural laws and we must try and give the same meaning to expressions used in these two laws. If the Civil Procedure Code has understood an ex parte decree in one particular definite sense, there is no reason why we should take the view that the Limitation Act has understood it in a different sense. Apart from that, the Limitation Act must always be construed strictly against the party who sets up the plea of limitation. The Limitation Act deprives a party of a valuable right and unless the provision in the Limitation Act was clear and beyond doubt, a benevolent construction, a construction favourable to the party whose valuable right is being taken away, must always be given and therefore in our opinion Article 164 does not apply to an application made by a defendant against whom a decree has been passed in a summary suit when he was precluded from appearing by reason of the fact that leave to defend was not given. In our opinion, such an application falls under Order 37 Rule 4 and the Limitation Act has not dealt with any such application. Therefore, the article that would apply would be the residuary Article 181."
This judgment of Bombay High Court has been followed by the High Court of Rajasthan in the decision cited Mohan Lal v. Om Prakash, (supra) and in Surya Prakash v Mohd. Jameel Khan, , and also by the High Court of Jammu and Kashmir in the decision Subhash Raina v. Suraj Parkash (supra). But in my humble opinion, this approach of the High Court of Bombay, Rajasthan and Jammu and Kashmir is not acceptable. As already pointed out in the decision of High Court of Bombay P.N. Films Ltd. v. Overseas Films Corpn. Ltd. (supra), that the word "ex parte'' is used both in the Code of Civil Procedure as well as in the Limitation Act in the same sense of the term that a particular person failed to appear before the Court to do certain acts, which he was required to do and accordingly the decree or order is passed. In other words, after service of summons, the presence of a particular party was necessary on a particular day to do certain 'acts', that act may be either to lead evidence or to file written statement or to seek leave of the Court to defend the suit, or any such acts which as per the law or the direction of the Court, party was required to do on that particular day and if he failed to do it, Consequently an order or decree is passed, and such an order or decree is an ex parte order or ex parte decree. Therefore, the act of the defendant to seek leave of the Court also is an act that the defendant was required to do on a particular day, on which day he remained absent, as a result, he did not seek the leave of (he Court and consequently an ex parte decree is passed and such decree is an ex parte decree. This general principle is the basis of Order 37 Rule 3(6), but with certain deeming clauses so as to make the summary procedure more quick and effective. The object of Order 37 is to provide a speedy remedy in favour of the plaintiff in suits based upon bills of exchange, hundies and promissory notes or in a case the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant arising on a contract or on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty or on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. In such cases, normally the defendant ordinarily has no defence. Therefore, Order 37 Rule 3 provides that after service of summons, the defendant or his Counsel shall immediately enter into an appearance and give notice to the plaintiff or his pleader and on receiving such notice, the plaintiff or his Counsel shall serve on the defendant a summon for judgment in Form No.4A for the suit amount further stating that the defendant has no defence in the suit. Thereafter, the defendant by disclosing necessary facts may apply to the Court seeking leave to defend such suit and such leave may be granted by the Court unconditionally or upon such terms the Court may consider just. Such leave may be refused if the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence or Ins defence is frivolous or vexatious, and if the defendant admits a part of the amount claimed, such leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in the Court. Under Rule 3(6) of Order 37, if the defendant has not applied for leave to defend and if an application of the defendant for leave to defend his suit has been made and is refused, the plaintiff shall be entitled to judgment forthwith. Under Rule 7 of Order 37, the Court may for "sufficient cause" shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend a suit. Rule 2(3) of Order 37 provides that the defendant shall riot defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. I make it clear that under Rule 3(6) of Order 37, if the defendant has not applied for leave to defend or his application has been refused, the plaintiff would be entitled to judgment forthwith because of the fiction provided by Rule 2(3) of Order 37, that the defendant is deemed to have admitted the allegations made in the plaint.
10. Thus from the combined reading of the above Rule 2(3) and Rule 3(6) of Order 37, it is clear that the allegations made in the plaint are deemed to be admitted by the defendant, where the defendant has failed to enter into an appearance or fails to seek leave of the Court and the plaintiff would be entitled to judgment forthwith. As a matter of fact, in such cases, the defendant by failing to enter into an appearance remained "ex parte" yet a decree is granted on a 'fiction', that the defendant is deemed to have admitted the plaint allegations. Therefore, in a decree passed against the defendant for his not entering an appearance in terms of Rule 2(3) of Order 37, it is an 'ex parte decree' in the sense that CPC has used it. But, instead of passing an ex parte decree, a decree is passed as if the defendant has admitted the allegations of the plaintiff, "As if admitted" is only to make the decree effective and the decree does not cease to be 'ex parte' in the sense Order 9 Rule 13 has used it. The Order 9 Rule 13 is not applicable because of Order 37 Rule 7 makes a summary procedure self-contained code and regarding the matters for which a procedure is not provided under Order 37, then other procedure provided to the suits would be applicable as if it is a suit instituted in an ordinary manner. It is in this sense of the term, it is a decree for the purpose of Rule 3(6) of Order 37, but it is an "ex parte decree" in terms of Rule 2(3) of Order 37. For instance, Rule 3(7) of Order 37 provides that "the Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit." Therefore, the principle of 'sufficient cause' is made applicable under Rule 3(7), since infact it is an 'ex parte' proceedings. Though the allegations are deemed to have been admitted, yet if (he defendant shows "sufficient cause" under Rule 3(7), the Court may excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. From this it further follows that Rule 3(7) applies before a decree is passed and if a decree is passed, that would be the decree for the purpose of Order 37, Rule 4 under which the defendant has to make out "special circumstances" for setting aside such a decree. If the Court also feels it reasonable to do so, such decree may be set aside and defendant may be granted leave to appear and defend the suit. For immediate purposes, 1 thing it appropriate again to extract Rule 4 of Order 37 as under :
"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."
11. Rule 4 of Order 37 has not used the word 'ex parte' because under Rule 2(3) whenever the defendant fails to appear in the suit or fails to seek leave of the Court he is deemed to have admitted the allegation and accordingly a decree deemed to have been passed on merits. Therefore, Rule 4 does not use the word 'ex parte' because of the fiction provided by Rule 2(3) of Order 37, otherwise, the decree is an ex parte decree because the same is passed either in the 'absence' of the defendant or the defendant failing to seek the leave of the Court to defend the suit. Prom the construction of Rule 2(3), 3(5), 3(6) and (7) read with Rule 4 of Order 37, this is only the inference possible.
12. As I have already stated above, Rule 4 of Order 37 contemplates an "ex parte decree" in the same sense the CPC has used under Order 9 Rule 13 or in the same sense the Limitation Act has used under Article 123 of the Limitation Act and the period of limitation is 30 days, from the date of the decree or where the summons or notices were not duly served, when the applicant had the knowledge of the decree. The High Court of Bombay also took that both the Limitation Act and Code of Civil Procedure have used the expression "ex parte" in the same sense of the term. But, their further conclusion that for such an ex parte decree passed under Order 37, there is no provision under the Limitation Act, therefore, Article 137 of the Limitation Act applies, consequently the period of limitation is three years. In my humble opinion that would not be acceptable. Because Rule 4 of Order 37 applies only to ex parte decree on the basis of deemed admissions on the part of defendant, but not to a decree passed on contest in the presence of both parties. Therefore, Article 123 governs such ex parte decree passed under Order 37 and the limitation is 30 days, but not three years. This interpretation, in my opinion is based on reasonable construction of the provisions of Order 37 of CPC along with Section 123 of the Limitation Act. To say that for other ex parte decree passed in a summary suit under Order 37 is three years would be absurd. When the Legislature thought of providing a speedy remedy for the plaintiff to obtain the decree under Order 37, they could not have thought of providing three years limitation under Article 137 of the Limitation Act for setting aside such an ex parte decree. In this view of the matter, I record my humble disagreement with the judgment of the High Court of Bombay in P.N. Film's case (supra), High Court of Rajasthan rendered in Surya Prakash's case (supra) and the judgment of Jammu and Kashmir High Court rendered in Subash Raina 's case (supra).
13. In this view of the matter, the present application filed by (he defendant beyond the period of 30 days would be barred by limitation and he can show the 'special circumstances' under Rule 4 of Order 37, but not the 'sufficient cause' in terms of Section 5 of the Limitation Act, since the principle of sufficient cause found under Section 5 of the Limitation Act also stands substituted by the phrase 'special circumstances' found under Rule 4. To this extent, Section 5 of the Limitation Act stands modified by Order 37 Rule 4 CPC on the ground that the special law excludes the general law. Since, the Order 37 has not provided any specific limitation as a special law, the general law of limitation provided under Article 123 of the Limitation Act applies and such period of limitation is 30 days. Therefore, in such circumstances, the defendant shall the an application within 30 days, but should show specific circumstances for condonation of delay and for setting aside the ex parte decree.
14. As I have already stated above, in the instant case while allowing the revision petition and setting aside the order of the Court below, I proceeded on the basis that the defendant has shown sufficient cause or such sufficient cause can be accepled by imposing costs, but I should have applied the principle of 'special circumstances' found under Rule 4 of Order 37. Thus, as I have already stated above, there is error apparent on the face of the record as explained by the Hon'ble Supreme Court in Northern India Caterers v. Lt. Governor, Delhi, , and in Meera Bhanja v. Ninnala Kumari Choudury, . In Northern India Caterer's case (supra), the Hon'ble Supreme Court has held that a review cannot be equated with the original hearing of the case, since the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility". In other words, "an error apparent on the face of the record" is one where there is a glaring omission or a patent" mistake or a grave error in judgment rendered. In Meera Bhanja's case (supra), the Hon'ble Supreme Court further clarified the phrase 'error apparent on the face of the record', by relying on the judgment in Satyanarayan Laxminarayan Hegde V. Mallikarjun Bhavanappa Tirumala, . The Honbte Supreme Court clarified the concept of the phrase 'error apparent on the face of the record' as under:
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
15. By applying this principle only, I found that there is an error apparent on the face of the record in the instant case, since the order under review was passed by applying the principle of 'sufficient cause' found under Order 9 Rule 13 instead of applying the principle of 'special circumstances' found under Order 37 Rule 4. Therefore, without any long drawn process of reasoning from the first look itself it is clear that such an error is apparent on the face of the record. In this view of the matter, I have no option, but to allow this review petition and set aside the order of this Court dated 19-11-1998 passed in CRP No.3871 of 1998 and restore the revision on file.
16. After going through the impugned order dated 2-7-1998 passed by the senior Civil Judge, Tadepaligudem in IANo.496/ 1998 in OS No.73/1997, I find that the Court below has also applied the principle of sufficient cause' found under Section 5 of the Limitation Act in refusing to condone the delay of 197 days in filing application instead of principle of 'special circumstances' found under Order 37 Rule 4 CPC. In this view of the matter, the impugned order dated 2-7-1998 passed on IA No.496 of 1998 filed in OS No.73/1997 of the Court below is also liable to be set aside. Accordingly, I pass the order as under :
17. The review CMP No.2995/1999 in CRP No.3871/1998 is allowed and the order dated 19-11-1998 passed in CRP No.3871/1998 is set aside and the impugned order dated 2-7-1998 passed by the senior Civil Judge, Tadepalligudem in IA No.496/1998 in OS No.73/1997 is set aside and the said IA No.496/1998 is remanded to the Court below for fresh disposal in accordance with law in the light of the above judgment. In the circumstances, the parties shall bear their own costs.