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2005 DIGILAW 3152 (RAJ)

Bhanwarlal Sualal Badala v. Ratan Lal

2005-11-29

VINEET KOTHARI

body2005
Judgment Dr. Vineet Kothari, J.-This revision petition is directed against the order dated 27.08.2004 passed by the learned Civil Judge (S.D.), Vallabhanagar, district Udaipur by which the ex-parte decree against the defendant Ratanlal was set aside by the Court on an application under Order 37 Rule 4 CPC. on the condition of payment of cost of Rs. 500/-. Aggrieved by the said order, the present revision petition has been filed by the plaintiff Bhanwarlal. 2. I have heard learned Counsel for the parties. 3. The ex-parte decree in question was set aside by the Court below on the ground that the summon, which was alleged to have been served on the defendant was not available in record of the Court. However, there was an order-sheet entry dated 110.1995 in which the service of summons upon the defendant was taken as completed and accordingly, the suit was decreed ex-parte. In the application filed by the defendant under Order 37 Rule 4 CPC, the applicant came out with a case that no such notice was ever served upon him and, therefore, merely on the basis of the order-sheet entry dated 110.1995, ex-parte decree could not have been passed. 4. Learned Counsel for the petitioner relies upon the decision of the Honble Supreme Court in Rajni Kumar vs. Suresh Kumar Malhotra & Anr., reported in 2003 (1) WLC (SC) p. 603. Para 10 of the said decision is relevant and the same is reproduced hereunder for ready reference:- “It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex-parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the Court to grant leave to the defendant to appear to summons and defend the suit if the Court considers it reasonable so to do, on such terms as Court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified relief may be granted by the Court all such reliefs must be claimed in one application. Where on an application, more than one among the specified relief may be granted by the Court all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive 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 the 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 of Order 37 is different from Rule 13 of Order 9 CPC. 5. Order 37 Rule 4 CPC is also reproduced hereunder for ready reference:- “Order XXXVII - Summary Procedure (1) to (3) xxx (4) Power toset 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.” 6. On the basis of the said decision of the Honble Supreme Court (Supra), learned Counsel for the petitioner submits that even if , the default of appearance is condoned on account of said summons having not been served upon the defendant though, there is an order-sheet entry in the record of the trial Court, no further leave to defend can be granted to the defendant as he has not made out any of the grounds to leave to defend and disclosed the same in the said application filed by him under Order 37 Rule 4. 7. With due respect, this submission of the learned Counsel for the petitioner is not correct. 7. With due respect, this submission of the learned Counsel for the petitioner is not correct. The intention of Order 37 CPC providing for summary procedures for specified types of suits is to expedite the trial of such suits for limited purpose as specified in Order 37 Rule 2 CPC. Therefore, in the same spirit, Order 37 Rule 4 CPC, provided for various reliefs which can be granted upon an application under Order 37 Rule 4 CPC are envisaged to be made out and prayed for in the same application. In Para 10 of the decision quoted above, the Honble Supreme Court has clearly laid down that “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 permissible to claim such reliefs in successive petitions as it would be contrary to the latter and spirit of the provision. 8. No such case of successive petitions being filed by the defendant is available in the present facts of the case. What the trial Court has done by the impugned order is to merely allow the appearance to the defendant in view of the fact that summon, which is alleged to have been served on him, was not found on record. Therefore, notwithstanding, the order-sheet entry dated 110.1995, the Court allowed the application under Order 37 Rule 4 CPC on the condition of payment of cost of Rs. 500/-while setting aside the ex-parte decree dated 111.1995. As far as summary nature of suit is concerned, the letter and spirit of Order 37 Rule 4 CPC can be taken care in the present case by directing the parties to appear before the trial Court on a fixed date in near future and further directing the trial Court to proceed in the matter and conclude the same within stipulated time. 9. Accordingly, this revision petition is dismissed. The parties are directed to appear before the trial Court on 012.2005 and the trial Court will undertake the further proceedings in accordance with law and conclude the same within a period of three months from today.