Excelsior Correspondent
Srinagar, Jan 24: In a significant verdict, High Court has held that it may under ‘special circumstances’ set aside the ex parte decree passed by the trial court and not otherwise unless the aggrieved persons establishes and carve out his case for setting aside the ex parte verdict.
Justice M K Hanjura while hearing a petition challenging the trial court’s judgment on the ground that the same has been passed without hearing the petitioner as such is liable to be set aside, said the aggrieved person has to establish and carve out his case for setting aside the ex parte decree.
“…These cannot be treated on par, but have to be evaluated on different scales. Special circumstances cannot be equated with sufficient cause, as provided under Order 9 Rule 13 of the Code of Civil Procedure. Order 37 Rule 4 of the Code of Civil Procedure provides distinctly, explicitly and in plain language that after the decree, the Court may, under “special circumstances”, set aside the decree as is sought by the petitioner. Therefore, on this analogy a cause which may be sufficient will not entitle an applicant to seek setting aside of an ex parte decree”, court said.
Court on the point of “special circumstances” said that it has to be established and shown by the applicant to carve out a case in his favour. “Not only this, in any case, where a decree is passed under Order 37 of the Code of Civil Procedure and an application is made for setting aside the same, the judgment debtor/ defendant has to disclose his defense”, Justice Hanjura recorded.
This revision petition was filed against the order of the Court of 2nd Additional District Judge, Srinagar, passed in an application filed under Order 37 Rule 4 of the Code of Civil Procedure, for setting aside the ex parte decree in case titled Bashir Ahmad Wandroo versus Noor Mohammad Rah.
Respondent (Bashir Ahmad Wandroo) had filed a summary suit for the recovery of Rs. 20 lakhs along with interest in the court of the 2nd Additional District Judge, Srinagar, against Noor Mohammad Rah. The suit was determined by the trial court, by a judgment and decree dated 5th of June, 2017 and, accordingly, the judgment debtor-Rah was directed to pay Rs. 20 lakh to Wandroo alongwith interest at the rate 9 percent per annum from the date of the institution of the suit till realization of the decretal amount together with the costs of the suit calculated at Rs. 35,000.
Rah submits that he had duly engaged the lawyer, sooner the summons of appearance were issued and on the resumption of summons for judgment the counsel was exhorted to prosecute the matter further while seeking the defence, but the drawl of decree by the court suggests that the counsel has not bothered to pursue the matter given the summary nature of the suit, resulting into passing of ex parte decree and judgment against him.
On the other hand respondent-Wandroo strenuously resisted the application of the defendant/ applicant on the grounds, that the application for setting aside the ex parte decree is cryptic in details. It does not spell out any ‘special circumstance’ under which he could take refuge and shelter.
Court said that in the instant case no ‘special circumstance’ entitle the defendant-Rah to claim benefit under Order 4 has been set up. The mere fact, court added, that he was busy at some place and was undergoing training there would not have prevented him from engaging an attorney or a lawyer and instructing him to appear on his behalf and seek leave to defend the suit.
“The defendant willfully remained absent and in spite of service did not either personally or through agent or through a lawyer care to make his appearance and seek leave to defend the suit”, Justice Hanjura said.
“For the foregoing reasons, I am, therefore, not inclined to accede to the request of the defendant that the decree be set aside against him. Nor, can this application be treated as an application under Order 20, Rule 11 C. P. C. for fixation of instalments. There being two joint requests in a composite application they cannot be allowed to be taken up in one and the same application”, court concluded.
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