Syed Shah Quadri and Ashok Bhan
Whether the High Court committed jurisdictional error in declining to set aside the ex parte decree on the application of the appellant under Rule 4, Order 37?
• The appellant-tenant had rented residential flat No. C470, Sarita Vihar, New Delhi from the respondent-landlord for a period of nine months under an agreement of lease reduced to writing on Nov.26,1993.
• After the expiry of the term of tenancy she continued to occupy the said premises as tenant till Jan.17,1997.
• Alleging that the appellant did not pay the electricity and water consumption charges for the period starting from Nov.26,1993 to Jan.11,1997, the respondent filed suit under Order 37 of CPC, for recovery of Rs.33,661/-
• On the ground that on April 21,1999 summons for judgment was sent by registered A.D to the appellant pursuant to the order of the court dated April 16,1999 the Court drew inference of deemed service on him, proceeded with the case and decreed the suit ex parte on Aug.12,1999.
• The appellant, however, filed application under Order37, Rule 4 of CPC in the trial court to set aside the ex parte decree. On Jan.6,2001, the application was dismissed as no special circumstances were stated in the petition both in record to there being illegality in deeming service of summons for judgment on the appellant as well facts sufficient to entitle him to defend the suit.
• Aggrieved by the order of the Trial Court, the appellant filed revision petition in the HC, which was also dismissed on Oct.12,2001. Appeal was then filed in SC.
• There was no proof or record to show that any notice by registered post with acknowledgement due was issued to the appellant by the respondent.
• The respondent had taken notice from the court but did not file any proof of issuing the notice to the appellant, therefore there was special reason for the appellant not to appear in response to the summons for the judgment.
• Sufficient amount was deposited with respondent as advance and that Order 37 of CPC was not applicable to the facts of the case, therefore, appellant had good defence to the suit.
• The summons for the judgment was issued on April 21, 1999 and that the court had rightly drawn presumption of service on the appellant; that nowhere in her application had the appellant stated anything about her defence to the suit and therefore the order under challenge was rightly passed by the courts below.
• A careful reading of Rule 4, shows that it empowers, under special circumstances, the court which passed an ex parte decree under Order 37 to set aside the decree and grant reliefs as mentioned in the Order.
• The expression ‘special circumstances’ is not defined in CPC, nor is applicable of any precise definition by the court as human problems are complex and varied.
Before declaring the Judgment the Court very well explained the provisions of Order 37, even with reference to Order 9. The Supreme Court held that, though appellant has shown sufficient cause for his absence on the date of passing ex parte decree, she failed to disclose facts which would entitle her to defend the case. The respondent was right in his submission and application of Order 37, Rule 4. The Supreme Court accepted that the High Court was right in accepting existence of special circumstances, but declining to grant relief since no circumstances justifying the defence were mentioned. No illegality, much less jurisdictional error in the order was found.