LexRAJNI KUMAR versus SURESH KUMAR MALHOTRA AND ANR.
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A RAJNI KUMAR v. SURESH KUMAR MALHOTRA AND ANR. MARCH 28, 2003 B [SYED SHAH MOHAMMED QUADRI AND ASHOK BHAN. JJ.] Practice and Procedure: Civil Procedure C'ode,1908: 0.9. Rules II and 13, 0.34 und0.37, R.4: C Suit for recove1y-Trial Court decreed suit ex-parte-Dismissed application under Order 37 Rule 4 thereafter holding no spe.:ial circumstances/facts averred in the app/icationjustifj;ing entitlement of petitioner to defend the suit-Revision petition dismissed by High Court-On appeal, held, though appellant has shown sufficient cause for his absence on the date when court passed ex-parte D decree, he failed to disclose facts which would entitle him to defend the case- Hence, High Court rightly declined to se1 aside ex-parte decree under 0.37 Rule 4-Since liability does not arise out of commercial transactiom, rate of interest reduced from 18% to 6% p.a.-Directions issued. 0.37-leave w defend-Procedure--Grant of-Held: Since 0.37 does E not speak of the procedure while granting leave to defend, the procedure applicable to suit instituted in the ordinaiy manner will apply. F G H Suits instituted in the ordinmy manner and suits filed under 0.37. R.4- Distinction between-Discussed. Words & Phrases: 'Special circumstances '---Meaning of in the can/ext of suit filed under 0.37 C'PC. Respondent-landlord filed a suit for recovery of certain amount towards water and electricity charges due from his tenant-appellant for the period of tenancy. Civil Court decreed the suit ex-parte. Aggrieved tenant filed application under 0.37 Rule 4 to set 11side the ex-parte decree. Application was dismissed by the Trial Co11rt holding that no special 66 \ RAJNI KUMAR v. SURESH KUMAR MALHOTRA 67 circumstances had been disclosed in the application which would entitle A him to defend the suit. Revision petition was dismissed by the Hih Court. Hence the present appeal. It was contended for the appellant that in the absence of proof of service of notice to appellant he was having special reason for non- appearance; and that since sufficient amount as an advance had already B been deposited with the respondent, 0.37 CPC was not applicable to the facts of the case and appellant had good defence to the suit. Dismissing the appeal, the Court HELD: 1.1. The expression 'special circumstances' is not defined in C the CPC nor is it capable of any precise definition by •the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extra- ordinary, significant, uncommon. It is an antonym of common, ordh1ary and general. It is neither practicable nor advisable to enumerate such D circumstances. Non-service of summons will undoubtedly be a special circumstance. (71-D] 1.2. In an application under Order 37, Rule 4, the court has to determine the question, on the facts of each case, as to whether the circumstances pleaded are so unusual or extra ordinary as to justify E putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre decree matters. (71-E] 1.31n considering an application to set aside an ex-parte decree, it F is necessary to bear in mind the distinction between suits instituted in the ordinary manner and suits filed under Order 37 CPC. Rule 4 of Order 37 specifically provides for setting aside decree. Therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37. In a suit filed in the ordinary manner a defendant has the right to contest the suit as a matter of course. Nonetheless, he may be declared ex-pa rte if he does G not appear in response to summons, or after trial. 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 H 68 SUPREME COURT REPORTS [2003) 3 S.C.R. A ex parte against defendant. If the court is satisfied that (I) summons was not duly served, or (2) he was prevented by sufficient cause from appearing when the suit ~as called for hearing, i1t has to make an order setting aside the decree against him on such terms as to cost or payment into court or otherwise
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