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2005 DIGILAW 608 (AP)

B. Rajeshwar Rao v. G. B. Tilak

2005-07-08

L.NARASIMHA REDDY

body2005
( 1 ) THE petitioner filed OS no. 120 of 2002, in the Court of III Senior civil Judge, City Civil Court, Secunderabad for recovery of a sum of Rs. 2,21,000/- against the sole respondent, by having recourse to the proceedings under Order 37 rule 4 C. P. C. The trial Court issued summons to the respondent. Since he did not turn up within 10 days from the date of service of summons, it passed a Judgment and Decree dated 11-6-2002, under Rule 2 of Order 37. ( 2 ) THE respondent filed IA No. 1929 of 2003 under Rule 4, Order 37 CPC, to set aside the decree dated 11-6-2002. He pleaded that the summons issued by him indicated as though he was required to appear before the trial Court on 7-6-2002 and being under that impression, he approached the Court with a vakalat on 7-6-2002, but he was informed of the fact that the vakalat cannot be received at that stage. He pleaded that, on realizing that the procedure under Order 37 was invoked, an application was filed, to set aside the ex parte decree. ( 3 ) THE application was opposed by the petitioner on several grounds, including the one, as to maintainability. Through its order dated 6-1-2004, the trial Court allowed the application. Hence, this revision. ( 4 ) SRI T. Raghuram, learned Counsel for the petitioner, submits that the application filed by the respondent is barred by law inasmuch as once a decree is passed in a suit filed under Section 37, the only basis on which, it can be assailed is by showing the reasons that prevented the party from entering appearance within the stipulated time, as well as by demonstrating, that there exists a triable issue. According to him, in the instant case, the respondent did not indicate any ingredients of triable issue, and in that view of the matter, the order of the trial Court cannot be sustained. He placed reliance upon a judgment of the Supreme Court in rajni Kumar v. Suresh Kumar Malhotra, (2003) 5 SCC 315 . ( 5 ) SRI P. Prabhakar, learned Counsel for the respondent, on the other hand, submits that the petitioner pleaded the circumstances under which, he was prevented from entering appearance within 10 days from the date of receipt of summons, and that there exist a triable issue. ( 5 ) SRI P. Prabhakar, learned Counsel for the respondent, on the other hand, submits that the petitioner pleaded the circumstances under which, he was prevented from entering appearance within 10 days from the date of receipt of summons, and that there exist a triable issue. He contends that omission on the part of the trial Court to record any finding as to the existence of triable issue cannot vitiate the order under revision and that it does not call for any interference. ( 6 ) WHENEVER a suit is presented by taking recourse to Order 37 CPC, the defendant, is required to enter appearance within 10 days from the date of receipt of the summons. Otherwise, the defendant is precluded from defending himself, and it shall be permissible for the Court to pass a decree, proceeding on the assumption that the defendant had admitted the claim of the plaintiff. It is not in dispute that the respondent was served with summons on 17-4-2002. He was under obligation to enter appearance within 10 days therefrom. However, it is evident from the copy of summons served upon him that, either inadvertently, or otherwise, the date 7-6-2002 was mentioned in it, as though it is for his appearance. It is true that it was struck of; But, being a layman, and having regard to the complex procedure under order 37, he cannot be expected to understand the implication thereof. He entered appearance subsequent to 7-6-2002, by which time, the trial Court decreed the suit as provided for under Rule 2 of order 37. ( 7 ) THE respondent filed LA. No. 1929/ 2003 to set aside the ex parte decree. Since there was delay in filing it, he filed an LA under Section 5 of Limitation Act. The trial Court refused to condone delay. This Court allowed the CRP filed against it, and directed the trial Court to consider LA. No. 1929/2003 on merits. The trial Court was satisfied as to the existence of "special circumstances", which disabled the respondent from defending himself. That, however, is not sufficient, for setting aside a decree of this nature. Rule 4 of Order 37 not only requires the Court to satisfy itself as to the existence of special circumstances but also about the basis, for the defendant to defend himself, which in the normal parlance is referred to as "triable issue". That, however, is not sufficient, for setting aside a decree of this nature. Rule 4 of Order 37 not only requires the Court to satisfy itself as to the existence of special circumstances but also about the basis, for the defendant to defend himself, which in the normal parlance is referred to as "triable issue". The compliance with the twin requirements, under Rule 4 of Order 37, was pointed out by the Supreme Court, in its judgment in rajni Kumar (supra ). After referring to relevant provisions, their Lordships held as under: "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 the Court thinks fit in addition to setting aside the decree". 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 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 the 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" ( 8 ) FROM this, it is evident that in an application filed under Rule 4 of Order 37, the defendant must not only plead the existence of "special circumstances" that prevented him from entering appearance within a stipulated time, but also the ingrethents of triable issue. It may be that he may not be required to place the entire material in his support, before the Court. A particular plea in this regard may be sufficient, and it is during the course of examination of the application, that the necessary particulars, be supplemented. ( 9 ) IN the application filed by the respondent, he pleaded the reasons, which prevented him from entering appearance within the stipulated time, elaborately, whereas the plea as to existence of triable issue was stated in very broad terms. Much would depend on the nature of opposition to this plea, and the material that both the parties may place before the trial Court. Obviously, not being aware of this requirement to satisfy itself as to the existence of a triable issue, the trial Court did not undertake any discussion on this aspect. On this short ground, the matter needs to be remanded. ( 10 ) THEREFORE, the order under revision is set aside. The matter is remitted to trial Court for" fresh consideration in accordance with the law as indicated above. While examining the application, the trial court shall take into account the written statement, if any filed, by the respondent for the limited purpose of satisfying itself as to existence of triable issue, and not for other purposes. ( 11 ) THE petitioner invoked the procedure under Order 37, with a view to recover the amount from the respondent at the earliest possible time. Though it can be said that there existed certain special circumstances in favour of the respondent, the very purpose, in invoking the procedure, cannot be permitted to be defeated. Taking the totality of the circumstances, it is directed that the respondent shall deposit a sum of Rs. Though it can be said that there existed certain special circumstances in favour of the respondent, the very purpose, in invoking the procedure, cannot be permitted to be defeated. Taking the totality of the circumstances, it is directed that the respondent shall deposit a sum of Rs. 1,00,000/- (Rupees one lakh only), within six weeks from today, and further proceedings in the matter shall take place only after such deposit. On such deposit, it shall be open to the petitioner to withdraw the same by furnishing third-party security. ( 12 ) THE CRP is accordingly allowed to the extent indicated above. No order as to costs.