Judgment Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India as well as under the provisions of the Civil Procedure Code for the prayer that appropriate writ, order or direction may be issued quashing and setting aside the impugned order passed below application, Exh.25 in Civil Misc. Application No. 355 of 2011 by Learned Judge, City Civil Court, Ahmedabad dated 23.06.2011 and also for the interim direction for arrangement of bank guarantee on the grounds set out in the memo of petition referring to the provisions of Order 37, Rule 4 of the Civil Procedure Code as well as on the aspect of limitation inter alia contending that the impugned order is contrary to the material and evidence on record and statutory legal position as contained in Civil Procedure Code, 1908 as well as Limitation Act and Ahmedabad City Civil Court Rules, 1961. 2. Learned counsel, Mr. B.R. Gupta referred to the impugned order at length as well as the facts of the case and submitted that the respondent had taken the shop on lease on the basis of leave and licence for its showroom and, thereafter, initially they have made the payment but after two years, they stopped making payments towards the amount of lease or rent and they did not vacate the premises also. Therefore, the aforesaid Summary Suit No. 151/2011 was filed for the recovery of sum of Rs. 17,83,293/- towards the agreed license fees, amenity charges, service tax etc. Learned counsel, Mr. Gupta submitted that legal notices were addressed, which are placed on record and as they have failed and neglected, the aforesaid Suit was filed to recover the dues/outstanding amount of license fees etc. as referred to in the leave and license agreement. However, when the said Suit was decreed and ex parte decree was passed, the respondent-original defendant filed Civil Misc. Application No. 355 of 2011 under Order 37, Rule 4 read with Section 151 of the Civil Procedure Code, which is produced at Annexure-D and contended that when the ex parte decree was passed, summon of the Summary Suit No. 151 of 2011 was not served upon them and without serving notice or summons at Banglore Office, they cleverly made the regional office at Mumbai as party defendant and obtained the ex-parte decree. It is contended that Mumbai office has in no way concerned with the transaction and legal office is at Banglore, which could be transpired from the agreement and other papers. It is also contended that the plaintiff-opponent in the said application (the petitioner herein) had knowledge about the office having at Banglore and still he had served the summons or notice at Mumbai office. Therefore, there is talks about the settlement between the parties and on the other hand, they have filed the Suit not making Banglore office as party, which itself would suggest the oblique motive and, therefore, they had applied for setting aside the ex parte decree. After hearing both sides, learned Judge, City Civil Court, Ahmedabad by impugned order dated 23.06.2011 allowed the application filed by the applicant-original defendant setting aside the ex parte decree passed by the Chamber Judge in Summary Suit No. 151 of 2011, which is challenged by way of present petition. 3. Learned counsel, Mr. Gupta submitted that the Learned City Civil Court has failed to appreciate the provisions of law like Order 37, Rule 4 of the Civil Procedure Code in asmuchas what is required to be considered is whether the ground i.e. special circumstance for setting aside such decree is made out or not, which has not been appreciated. Learned counsel, Mr. Gupta submitted that no special circumstance can be said to have been made out. Learned counsel, Mr. Gupta submitted that for the purpose of exercising the power under Order 37, Rule 4 of the Civil Procedure Code, the Court has failed to appreciate that there has to be a special circumstances which in this case is not made out. 4. Learned counsel, Mr. Gupta has also referred to Article 21 of the Limitation Act as well as Ahmedabad City Civil Court Rules and submitted that for setting aside the decree, period is thirty days and not three years. In support of his submission, he has referred to and relied upon the judgment of the Hon’ble Apex Court reported in 2004 (4) ALT 195 and submitted that in fact, Civil Misc. Application No. 355 of 2011 was beyond the scope of limitation and it ought not to have been entertained. He submitted that Order 41, Rule 5 of the Civil Procedure Code also has not been considered nor any ground for setting aside the decree has been made. Application No. 355 of 2011 was beyond the scope of limitation and it ought not to have been entertained. He submitted that Order 41, Rule 5 of the Civil Procedure Code also has not been considered nor any ground for setting aside the decree has been made. Learned counsel, Mr. Gupta submitted that in any case, at-least while passing the impugned order setting aside the ex parte decree, some direction or order to deposit the amount could have been passed. He, therefore, submitted that Civil Misc. Application No. 355 of 2011 was incompetent as it was beyond the period of limitation and in fact, no such application may be entertained once the ex parte decree was passed. He has also referred to Chapter-IV of the Ahmedabad City Civil Court Rules to support his submission with regard to procedure having been not followed. He also referred to Rule 444 Ahmedabad City Civil Court Rules to reflect on the conduct and submitted that the applicant could have served the copy to the advocate and inspite thereof, they have tried to get an order by suppressing the fact, which would amount to fraud. He has referred to and relied upon the judgment reported in 1994 (1) GLH 81 in case of S.P. Chengalvaraya Naidu (Death) By L.Rs. vs. Jagannath (Dead) by L.Rs. & Ors. 5. Learned counsel, Mr. Karia appearing for the respondent-original defendant submitted that in fact, earlier Suit was filed and there they appeared and leave to defend was granted by the Court only in view of the contentions raised including the contention with regard to the maintainability of Summary Suit. Learned counsel, Mr.Karia submitted that Summary Suit would not be maintainable as it cannot be said to be for recovery of debt or liquidated demand in money or any bill of exchange, hundies promissory note etc. Therefore, learned counsel, Mr. Karia submitted that Summary Suit itself is not maintainable and, therefore, plea was granted. To support his submission, he has referred to and relied upon the judgment reported in 2003 (5) SCC 315 in case of Rajni Kumar vs. Suresh Kumar Malhotra & Anr., which refers to special circumstances and non-service of summons or notice. He pointedly emphasized that it would be special circumstance. To support his submission, he has referred to and relied upon the judgment reported in 2003 (5) SCC 315 in case of Rajni Kumar vs. Suresh Kumar Malhotra & Anr., which refers to special circumstances and non-service of summons or notice. He pointedly emphasized that it would be special circumstance. He has also referred to the observations made in Para No. 11 to support his submission that it 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. However, he submitted that part of the amount, which is claimed, is also disputed as for such a period, the plaintiff is not in possession of the premises at all, for which, the rent is claimed and it is in these circumstances, this aspect have to be considered. 6. He further submitted that if on earlier occasion, the respondent has appeared, there is no reason why they would not appear. However, he submitted that as stated in the application in detail, the petitioner-original plaintiff has deliberately not made or joined the office at Banglore as party to obtain ex parte decree behind the back of the respondent-original defendant. On one hand, though it is stated that there was talks regarding the settlement or telephonic conversation obviously with legal department in the Banglore office, the said office is not made party in the suit and the summons or notice sought to be served at Mumbai office. He further submitted that therefore such summons or notice cannot be said to be proper or valid in eye of law as peon or watchman might have accepted the said notice or summons. He submitted that this itself would be a special circumstance as provided under Order 37, Rule 4 of the Civil Procedure Code for setting aside the decree, which would include such ex parte decree. Learned counsel, Mr. Karia referred to the provisions of Order 37, Rule 4 of the Civil Procedure Code and emphasized that it is within the powers of the Court to set aside the decree. He submitted that Order 41, Rule 5 of the Civil Procedure Code refers to the stay by the Appellate Court which has passed the decree. Learned counsel, Mr. Karia referred to the provisions of Order 37, Rule 4 of the Civil Procedure Code and emphasized that it is within the powers of the Court to set aside the decree. He submitted that Order 41, Rule 5 of the Civil Procedure Code refers to the stay by the Appellate Court which has passed the decree. Whereas as provided under Order 37 Rule 4 of the Civil Procedure Code, the prayer is for setting aside the decree on the ground of non-service of the notice or summons. Therefore, learned counsel, Mr. Karia submitted that there was no question of any direction for depositing the amount and, therefore, the order cannot be said to be erroneous. He further submitted that the contention about the conduct also requires to be closely scrutinized when the petitioner himself has not taken care to serve the summons or notice by making necessary office at Banglore party knowing fully well that the legal office is at Benglore when they stated about the conversation at Banglore office. He further submitted that in any case, the fact that the contention is raised about the maintainability of the Suit itself raises trivial issues. He submitted that in fact, the petitioner has not come with clean hands in asmuchas earlier, the respondent herein has deposited Rs. 9.00 lacs and in fact, for subsequent period, they are not in possession of the premises. The petitioner, who claimed to have purchased from one JP Infrastructure Pvt. Ltd., had entered into leave and licence agreement with the respondent herein and the petitioner has purchased this premises from JP Infrastructure Pvt. Ltd. subsequently and, thereafter, there is some writing executed between the petitioner and JP Infrastructure Pvt. Ltd., meaning thereby, that premises have been given on license but still the possession of the premises, for which, the rent is claimed, is not with the respondent as it has been taken away by the JP Infrastructure Pvt. Ltd., from whom, the petitioner is said to have purchased. Further, he pointed out that as could be seen from the original agreement between the JP Infrastructure Pvt. Ltd., and the respondent herein, it is specifically stated to the communication, which referred to the Legal Department of the respondent, Titan Industries Ltd., having its Corporate Office at Tower ‘A’, Golden Enclave, Airport Road, Banglore – 360 014. Further, he pointed out that as could be seen from the original agreement between the JP Infrastructure Pvt. Ltd., and the respondent herein, it is specifically stated to the communication, which referred to the Legal Department of the respondent, Titan Industries Ltd., having its Corporate Office at Tower ‘A’, Golden Enclave, Airport Road, Banglore – 360 014. There is reference to the arbitration clause and still without any such service of notice, straightway Suit is filed and hurriedly the application is moved for ex parte decree behind the back of the respondent, therefore, when it was pointed out to the City Civil Court, the ex parte decree has been set aside in exercise of power under Order 37, Rule 4 of the Civil Procedure Code as special circumstance is being made out. He, therefore, submitted that the conduct of the petitioner herein-original plaintiff is reflected which requires closure scrutiny on the basis of evidence. He further submitted that even the contention about the limitation is a big question of law and facts, which requires to be considered in asmuchas the judgment of the Bombay High Court reported in AIR 1958 (Bombay) 10 in case of P.N. Films Ltd. & Anr. vs. Overseas Films Corporation Ltd., provides that limitation should be period of three years which is prior to 1957 and, therefore, it would apply to the State of Gujarat also. He has also referred to and relied upon the judgment reported in 2006(3) GLH 15 in case of Swil Limited vs. Environmental Planning Group Ltd. 7. Learned counsel, Mr. Karia submitted that Rule 444 of the Ahmedabad City Civil Court Rules will not have any application as there is no interim order when the decree is passed. It would be a final order affecting the rights of the parties. He again referred to provisions of Order 37, Rule 4 of the Civil Procedure Code to emphasize about his submission and submitted that after hearing both sides, when the facts were pointed out raising trivial issues, the order setting aside the ex parte order came to be passed, which cannot be said to be erroneous and, therefore, the present petition may not be entertained. 8. In rejoinder, learned counsel, Mr. Gupta submitted that no special circumstance has been pointed out and, therefore, the discretion exercised by the City Civil Court is erroneous. 9. 8. In rejoinder, learned counsel, Mr. Gupta submitted that no special circumstance has been pointed out and, therefore, the discretion exercised by the City Civil Court is erroneous. 9. In view of the rival submissions, it is required to be considered whether the present application can be entertained or not. 10. Though submissions have been made at length referring to the various aspects including Order 37 and the provisions of the Limitation Act, moot question, which is required to be considered, is whether the impugned order passed by the Civil Court setting aside the ex parte decree in exercise of powers under Order 37, Rule 4 of the Civil Procedure Code can be said to be erroneous or perverse, which would call for interference under Article 227 of the Constitution of India. 11. The contention, which has been raised specifically with regard to non-service of the notice or summons referring to the facts that on one hand, there is averment about the contact with the representative of the defendant, meaning thereby, it is within the knowledge of the plaintiff that the office of the defendant is at Banglore and the notice or summons are to be sought to be served at Banglore office. Further, the petitioner is said to have purchased the said premises from one JP Infrastructure Pvt. Ltd., who had given under the leave and license agreement the premises in question to the respondent herein. Therefore, the petitioner has stepped in the shoes of the JP Infrastructure Pvt. Ltd. as licenser and would be bound by the terms and conditions of the leave and license agreement between the JP Infrastructure and the respondent herein. Clause 28 clearly suggests that the office or the communication would be Legal Department, Titan Industries Limited, Tower ‘A’, Golden Enclave, Airport Road, Banglore. This aspect has not been pointed out and when the petitioner/plaintiff was very much aware about this, there is no reason for not taking out the summons and serving the same at proper place of the respondent. It is in this circumstances, it cannot be said that no special circumstances are made out when no summons or notice are served upon the respondent. 12. It is in this circumstances, it cannot be said that no special circumstances are made out when no summons or notice are served upon the respondent. 12. Further, there is specific contention about the maintainability of the Suit under Order 37 of the Civil Procedure Code and also the fact that even if the said Suit is maintainable, the premises in question have not been in possession of the respondent and the same has been taken over by the JP Infrastructure with whom the petitioner is having transaction and is stated to have purchased from JP Infrastructure Pvt. Ltd. Therefore, the Suit is filed to claim the rent in respect of the premises by the respondent, which is not even in the possession of the respondent. This itself is a ground or special circumstance, which has been considered. 13. The submission made by the learned counsel, Mr. Gupta referring to the limitation aspect that the period is for thirty days and not for three years is again a matter, which is required to be considered as it will be considered in light of the fact that whether the present Suit is maintainable as Summary Suit or not. Further, again for maintainability of the Suit under Order 37, it has to be in respect of the amount or debt or ascertaining sum of amount or liquidated damages. This again will have to be ascertained. 14. The submission by the learned counsel, Mr. Gupta referring to Order 37, Rule 2 that the issue is arising out of the contract also, which would be Summary Suit, will have to be decided. Therefore, without considering at this stage, suffice it to say that there are trivial issues raised and since the notice or summon has not been served, the impugned order has been passed setting aside the ex parte decree. Therefore, it cannot be said that the order is erroneous. It is required to be mentioned that both the sides have made allegations with regard to the conduct and, therefore, without going into detail, no observation is required to be made at this stage and only considering the fact that there are trivial issues involved and when it was pointed out to the City Civil Court, the impugned order has been passed setting aside the ex parte order, which cannot be said to be erroneous. It is required to be mentioned that incidentally, the submissions have been made by the learned counsel, Mr. Gupta that Ahmedabad City Civil Court Rules provide for a particular procedure, whereas learned counsel, Mr. Karia has submitted that it will be subject to and inconsonance with the provisions of the Civil. A useful reference can be made to the judgment of the Hon’ble Apex Court reported in 2009 (2) GLR 905 in case of Wada Arun Asbestos (P) Ltd. vs. Gujarat Water Supply & Sewerage Board. Therefore, without any further elaboration, the present petition cannot be entertained and deserves to be dismissed. 15. Accordingly, the present petition stands dismissed. P P P P P