Final Order 23

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Presided by:-
Sh. Abhishek Srivastava, DHJS
Misc. DJ 770/23
CNR No. – DLCT01-017055-2023
Rajinder Arora …….. Plaintiff
Versus
Najibulla Khan ……. Defendant
O R D E R
1. This case has originated from an application filed by the applicant/
defendant (henceforth ‘applicant’) under Order IX Rule 13 read with Section 151
of CPC, 1908. By way of the said application, the applicant has sought setting
aside of judgment and decree dated 18.01.2018 passed in Suit bearing CS DJ
No. 1085/2017 and to allow him to file leave to defend application and to defend
the suit on merit. Along with the application under Order IX Rule 13 read with
Section 151 CPC, applicant has also filed an application under Section 5 of the
Limitation Act, 1963 read with Section 151 CPC seeking condonation of delay in
filing the application under Order IX Rule 13 CPC.
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2. No reply to the aforesaid applications of the applicant has been filed on
behalf of the non-applicant/ plaintiff.
3. Arguments on the application of the applicant under Section 5 of the
Limitation Act, 1963 read with Section 151 CPC have already been heard on
behalf of both the parties.
4. At the outset, what is to be noted is that the applicant by way of application
under Order IX Rule 13 read with Section 151 of CPC, 1908 is seeking to set
aside of judgment and decree dated 18.01.2018 passed in Suit bearing CS DJ No.
1085/2017, instituted as summary suit under Order 37 CPC.
5. Accordingly, this court sought a clarification from both the learned counsel
for the parties. Both the learned counsel for the parties had submitted that the
aforesaid applications as indicated in para 1 supra of this order be considered as
filed under Order 37 Rule 4 CPC. Fresh submissions of the learned counsel for
the parties then heard by this court.
6. It is also pertinent to note at the outset that the non-applicant had already
filed an execution petition in respect of the decree dated 18.01.2018 passed in CS
DJ No. 1085/2017 on 09.05.2018. The said execution petition bearing Ex.
No. 776/2018 has also been listed along with the present miscellaneous
application, i.e., Misc. DJ No. 770/2023.
DISCUSSION
7. Rule 4 of Order 37 CPC provides for
power to set aside decree. The
Hon’ble Supreme Court, in the case of Rajni Kumar V/s Suresh Kumar Malhotra;
(2003) 5 SCC 315, had discussed the scope of Rule 4 of Order XXXVII of the
CPC. The Hon’ble Supreme Court had also discussed how Rule 4 of Order
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XXXVII of the CPC is different from Rule 13 of Order IX of the CPC, which
provides for setting aside of ex parte judgment against defendant in suits instituted
in the ordinary manner. The relevant portion reads as under:
“8. 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 one or both of the following reliefs, if it
seems reasonable to the court so to do and on such terms as the court thinks
fit:
(i) to stay or set aside execution, and
(ii) to give leave to the defendant (a) to appear to the summons, and (b) to
defend the suit.
9. The expression “special circumstances” is not defined in the Civil
Procedure Code nor is it capable of any precise definition by the court
because problems of human beings are so varied and complex. In its
ordinary dictionary meaning it connotes something exceptional in
character, extraordinary, significant, uncommon. It is an antonym of
common, ordinary and general. It is neither practicable nor advisable to
enumerate such circumstances. Non-service of summons will undoubtedly
be a special circumstance. In an application under Order 37 Rule 4, the
court has to determine the question, on the facts of each case, as to whether
circumstances pleaded are so unusual or extraordinary as to justify putting
the clock back by setting aside the decree; to grant further relief in regard to
post-decree matters, namely, staying or setting aside the execution and also
in regard to pre-decree matters viz. to give leave to the defendant to appear
to the summons and to defend the suit.
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10. In considering an application to set aside ex parte decree, it is necessary
to bear in mind the distinction between suits instituted in the ordinary
manner and suits filed under Order 37 CPC. Rule 7 of Order 37 says that
except as provided thereunder the procedure in suits under Order 37 shall
be the same as the procedure in suits instituted in the ordinary manner.
Rule 4 of Order 37 specifically provides for setting aside decree, therefore,
provisions of Rule 13 of Order 9 will not apply to a suit filed under Order
37. In a suit filed in the ordinary manner a defendant has the right to
contest the suit as a matter of course. Nonetheless, he may be declared ex
parte if he does not appear in response to summons, or after entering
appearance before framing issues; or during or after trial. Though
addressing arguments is part of trial, one can loosely say that a defendant
who remains absent at the stage of argument, is declared ex parte after the
trial. In an application under Order 9 Rule 11, if a defendant is set ex parte
and that order is set aside, he would be entitled to participate in the
proceedings from the stage he was set ex parte. But an application under
Order 9 Rule 13 could be filed on any of the grounds mentioned thereunder
only after a decree is passed ex parte against the defendant. If the court is
satisfied that (1) summons was not duly served, or (2) he was prevented by
sufficient cause from appearing when the suit was called for hearing, it has
to make an order setting aside the decree against him on such terms as to
cost or payment into court or otherwise as it thinks fit and thereafter on the
day fixed for hearing by court, the suit would proceed as if no ex parte
decree had been passed. But in a suit under Order 37, the procedure for
appearance of the defendant is governed by provisions of Rule 3 thereof. A
defendant is not entitled to defend the suit unless he enters appearance
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within ten days of service of summons either in person or by a pleader and
files in court an address for service of notices on him. In default of his
entering an appearance, the plaintiff becomes entitled to a decree for any
sum not exceeding the sum mentioned in the summons together with
interest at the rate specified, if any, up to the date of the decree together
with costs. The plaintiff will also be entitled to judgment in terms of
subrule (6) of Rule 3. If the defendant enters an appearance, the plaintiff is
required to serve on the defendant a summons for judgment in the
prescribed form. Within ten days from the service of such summons for
judgment, the defendant may seek leave of the court to defend the suit,
which will be granted on disclosing such facts as may be deemed sufficient
to entitle him to defend and such leave may be granted to him either
unconditionally or on such terms as the court may deem fit. Normally the
court will not refuse leave unless the court is satisfied that facts disclosed
by the defendant do not indicate substantial defence or that defence
intended to be put up is frivolous or vexatious. Where a part of the amount
claimed by the plaintiff is admitted by the defendant to be due from him, no
leave to defend the suit can be granted unless the admitted amount is
deposited by him in court. Inasmuch as Order 37 does not speak of the
procedure when leave to defend the suit is granted, the procedure
applicable to suits instituted in the ordinary manner, will apply.
11. 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,
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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. In this respect, Rule 4 of Order 37 is
different from Rule 13 of Order 9.”
8. Thus, to succeed in the application under Rule 4 of Order XXXVII of the
CPC, it is imperative for the defendants to explain the special circumstances for
their non-appearance, and to also establish a substantial case on merits which may
entitle them to grant of leave to defend.
9. While “special circumstances” have not been defined anywhere in the CPC,
numerous Courts have endeavored to elaborate upon what constitutes as such. It
has been held in a number of judgments, that the threshold of “special
circumstances” is higher than that of “sufficient cause”, as provided under Rule 13
of Order IX of the CPC and Section 5 of the Limitation Act, 1963 (relied on
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decision of Hon’ble High Court of Himachal Pradesh in Tirlok Singh Thakur V/s
Madan Singh Nirala; 1999 SCC OnLine HP 41 and Hon’ble High Court of Delhi
in Pradeep Kalra V/s Vijay Bansal; 2025 SCC OnLine Del 9823)
10. Hon’ble Bombay High Court in Madhusudan Shrikrishna V/s M/s Emkay
Exports, Mumbai and others; 2008 SCC OnLine Bom 495 noted as under;
“18. Attention was also sought to be drawn to the decision of the learned
single Judge of this Court in Unilab Chemicals & Pharmaceuticals v. Smith
Stanistreet Pharmaceuticals Ltd., reported in 1999 (2) Mh. L.J. 289 : (1999)
Vol. 101 (1) Bom. L.R. 878 and particularly to para 7 thereof. In fact, the
para 7 merely refers to the contention which was sought to be raised on
behalf of the Advocate for the plaintiff in the said suit. However, the
learned single Judge therein has referred to a decision of another learned
single Judge of this Court in the matter of Harshad Shah v. Bhor Industries
Ltd., reported in 1998 (4) L.J. 334 wherein it was held that
“Specific provision is made under Order XXXVII, Rule 4 Civil
Procedure Code whereunder the defendant has to show the special
circumstances for setting aside ex-parte decree passed in Summary
Suit under Order XXXVII, Civil Procedure Code. To spell out
special circumstances the defendant has to first satisfy the Court that
there was not due service of Writ of Summons or Summons for
Judgment or that he was prevented by sufficient cause from getting
leave to defend and then secondly to show that he has good,
substantial and/or meritorious defence in the suit. In the absence of
satisfaction of first condition it may not be necessary to go into
second condition at all.”
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19. We are in respectful agreement with the said finding of the learned
single Judge. The power to set aside an ex parte decree cannot be exercised
in a casual manner, more particularly when the statutory provision
specifically requires the party to make out special circumstances for
exercise of such powers.”
(Underlined by me)
11. Bearing these principles in mind, let us examine the case of the applicant/
defendant.
12. The applicant has stated in his application filed under Order IX Rule 13 read
with Section 151 of the CPC that he never received the summons for judgment in
the summary suit bearing CS DJ No. 1085/2017. However, the applicant has
admitted that he did receive the summons for appearance and, in response thereto,
filed a memo of appearance in the said summary suit.
13. In the accompanying application filed under Section 5 of the Limitation Act,
1963 read with Section 151 of the CPC, the applicant has submitted that he became
aware of the judgment and decree dated 18.01.2018 passed in Suit bearing CS DJ
No. 1085/2017 only on 24/25.11.2023, when a bailiff visited his residence in
connection with the attachment/execution of the said decree.
14. At this stage, it is relevant to take note of relevant dates/ orders passed in
suit bearing CS DJ No. 1085/2017;
(a) Order dated 30.03.2017: Summons for appearance issued to the
defendant.
(b) Order dated 25.04.2017: Defendant entered his appearance and
filed memo of appearance on 03.04.2017. Summons for judgment
issued to the defendant as per address given in the appearance.
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(c) Order dated 16.10.2017:
Summons for judgment from Delhi
address through process server received back with the report that
the defendant comes at this address once in a while to collect rent.
Process server did not affix the process despite directions. Let
notice be issued to him for explanation. Summons for judgment at
Arunachal Pradesh address received back with the report addressee
left. Defendant himself has given both these addresses in his
summons for appearance. Let he be served by way of affixation at
Delhi address only on PF for 07.12.2017.
(d) Order dated 07.12.2017:
Summons issued to the defendant at his
Delhi address served by way of affixation on 07.11.2017. Issue
court notice to Sh. Ghan Shyam, Process Server for recording his
statement for 18012018.
(e) Order dated 18.01.2018:
…Statement of Mr. Ghan Shyam, process
server recorded regarding service of summons upon the defendant
by way of affixation. As per report Ex. C2, the affixation was done
by the process server on 07.11.2017. As per report Mr. Akil
Ahmed met the process server and stated that he is tenant of Mr.
Nazibulla Khan i.e. defendant. Statement of plaintiff also recorded.
On perusal of record, summons for appearance was sent on
this very address and Akil Ahmed who is cousin of defendant had
received the copy of summons on 28.03.2017 and in response to
that, defendant filed memo of appearance but now the same very
person i.e. Akil Ahmed had not received the summons for
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judgment on behalf of the defendant. Considering all the aspects
of the matter, I am of the view that defendant has been served by
way of affixation on dated 07.11.2017 and has not filed the leave
to defend application within 10 days as prescribed under Order 37
CPC. Therefore, I am of the view that plaintiff be heard on the
case…
15. So, on being served with the summons of the summary Suit for appearance,
the applicant/ defendant entered his appearances, as per Order XXXVII Rule 3(3)
of CPC, 1908, and provided following addresses by moving an appropriate
application (filed on 03.04.2017);
(i) R/o A-557, Amarpuri, Nabi Karim, New Delhi- 110055
(ii) G-Extension, Nahar Nagar, Mini Complex, Ita Nagar, Arunachal Pradesh
16. The Court had directed issuance of summons for judgment to the defendant/
applicant at both of his addresses. The summons sent to the Arunachal Pradesh
address were received back with the report “addressee left.” The summons sent to
the Delhi address, as provided by the applicant himself, were also returned
unserved with the report that the applicant visits the said address only occasionally
to collect rent.
17. It is noteworthy that the summons for judgment were refused by one
Sh. Akil Ahmad, the same individual who had earlier accepted the summons for
appearance while identifying himself as the applicant’s cousin. In these
circumstances, the Court ultimately directed service upon the applicant by way of
affixation at the Delhi address, which was duly carried out on 07.11.2017.
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18. This court as such is not inclined to accept the submissions advanced on
behalf of the applicant to the effect that he never received the summons for
judgment in the summary suit bearing CS DJ No. 1085/2017.
19. The Court shall now proceed to examine the contention of the applicant that
he became aware of the judgment and decree dated 18.01.2018, passed in Suit
bearing CS DJ No. 1085/2017, only on 24/25.11.2023, when a bailiff visited his
residence in connection with the attachment/execution of the said decree pursuant
to the orders passed in Execution Petition bearing Ex. No. 776/2018.
20. As already noted, the non-applicant had already filed an execution petition
in respect of the decree dated 18.01.2018 passed in CS DJ No. 1085/2017 on
09.05.2018. The said execution petition bearing Ex. No. 776/2018 is listed today
along with the present miscellaneous application.
21. A bare perusal of the record of Execution Petition bearing Ex. No. 776/2018
reveals that the said file was inspected by learned counsel for the judgment debtor,
namely Sh. Muntazir Mehdi (who is also the counsel in the present miscellaneous
application), on 11.07.2019. The record further reflects that the file was again
inspected on 09.05.2023 by Sh. Mohd. Kadir, an Advocate duly authorized by Sh.
Muntazir Mehdi.
22. Additionally, appearances on behalf of the judgment debtor were marked
through proxy counsel on two occasions, i.e., on 18.04.2022 and 14.09.2022.
23. In view of the aforesaid, the contention of the applicant that he became
aware of the judgment and decree dated 18.01.2018, passed in Suit bearing CS DJ
No. 1085/2017, only on 24/25.11.2023—when a bailiff visited his residence in
connection with the attachment/execution of the said decree pursuant to orders in
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Execution Petition bearing Ex. No. 776/2018—is found to be false and contrary to
the record.
24. In view of the foregoing discussion, this Court concludes that the applicant
has miserably failed to establish the existence of any special circumstances to
justify his non-appearance. No such grounds have been set out in the present
applications (treated as applications under Rule 4 of Order XXXVII CPC) so as to
warrant the setting aside of the judgment and decree dated 18.01.2018 or to accede
to the applicant’s prayer for grant of leave to defend. After having entered
appearance and filed a memo of appearance, the applicant failed to remain vigilant
and to take appropriate steps to defend the suit.
25. This Court further finds, as demonstrated hereinabove, that the applicant has
not been candid and truthful in stating the facts of the case.
26. Inasmuch as the applicant/defendant has failed to satisfy this Court that there
was no due service of summons for judgment, or that he was prevented by
sufficient cause from seeking leave to defend—and in fact has been found to have
misstated the facts—this Court does not deem it necessary to examine whether the
applicant has any good, substantial, or meritorious defence in the suit.
27. Accordingly, the aforesaid applications filed by the applicant (treated as
applications under Rule 4 of Order XXXVII CPC) stand dismissed.
28. Ordered accordingly.
Announced in the open court on this 8th day of April, 2026.
This order consists of 12 number of signed pages.
(Abhishek Srivastava)
District Judge-05,
Central, THC, Delhi
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