RAMABEN BHAGUBHAI PATEL Vs. HINDUSTAN ELECTRIC CO LTD
LAWS(BOM)-1962-6-11
HIGH COURT OF BOMBAY
Decided on June 20,1962

RAMABEN BHAGUBHAI PATEL Appellant
VERSUS
HINDUSTAN ELECTRIC CO.LTD. Respondents





Cited Judgements :-

ISMAIL MOHAMMAD QASIM VS. KHURSHID AHMED KHAN S O SATTAR KHAN [LAWS(BOM)-1997-12-55] [REFERRED TO]
G. RITE AND CO. VS. CHANDRAKANT HARILAL SHAH [LAWS(BOM)-1969-9-19] [REFERRED TO]
LUCKY ELECTRICAL STORES VS. RAMESH STEEL HOUSE [LAWS(MAD)-1988-3-13] [REFERRED TO]
RAMCHANDRA DHONDU DALVI VS. VITHALDAS GOKULDAS [LAWS(BOM)-1963-11-5] [REFERRED TO]
SARASWATI TIN CONTAINERS PRIVATE LIMITED VS. META CANS [LAWS(BOM)-1997-12-6] [REFERRED TO]
B. C. SHAH AND CO. VS. T. P. KANANI [LAWS(BOM)-1974-8-24] [REFERRED TO]


JUDGEMENT

- (1.)A question of some importance arises in this revisional application. The question is whether a decree passed in a Summary Suit, on the failure or the defendant to comply with the terms of conditional leave, can be set aside by the Court which passed the decree, on the ground that the defendant had sufficient reasons for not complying with the terms of the conditional orders.
(2.)A suit was filed by the petitioner against the respondents to recover a sum of Rs. 10,000/- on a deposit receipt alleged to have been executed by the respondents. On the 20th of July 1960 a summons for judgment was taken out in the suit, in reply to which the respondents put in their affidavit on the 16th of October 1960, on the 10th of March 1951 the summons for judgment was heard when the respondents were given conditional leave to defend the suit, the condition being that they should deposit a sum of Rs. 7,500/- within a period of four weeks. The respondents did not comply with the condition whereupon the suit was set down for hearing and on the 13th of April 1961 3 decree was passed in favour of the petitioner. On the 12th of June 1961 a Notice of Motion was taken out by the Respondents for setting aside the decree on the ground that they could not deposit the amount on account of financial difficulties. The Notice of Motion has been made absolute by the learned Judge of the City Civil Court, Bombay. The learned Judge has held that a decree which is passed under order. 37 Rule 2(2) of the Civil Procedure Code cannot be set aside either under Order 9, Rule 33, the decree not being an ex parte decree, nor under 0rder 37, Rule 4, that provision, according to the learned Judge, being applicable to cases in which the defendant has not appeared at all in answer to the summons for judgment. The learned Judge has, however, taken the view that by reason of the absence of a specific provision in the Code of Civil Procedure which will govern the case, a decree passed under 0rded 37, Rule 2 (2) can be set aside under the inherent powers of the Court under Section 151 of the Code. So holding, the Earned Judge has set aside the decree and has directed that the suit should be restored to the file on condition that the defendants deposited the entire decretal amount in the Court as also the costs incurred by the plaintiff in the suit and in me Notice of Motion.
(3.)The question which arises in these circumstances is whether the learned Judge has jurisdiction to set aside the decree which was earlier passed for failure of the defendants to comply with the terms of the order of conditional leave. It is important to mention that this is nor, a case in which the defendants have failed to appear in answer to the summons for judgment. The summons for judgment was duly served on the defendants, who appeared in answer to the same and contended that unconditional leave to defend the suit should be granted to them. After hearing the parties, an order was passed by Judge Vimadalal that conditional leave be granted to the defendants on their depositing a sum of Rs. 7,500/- within four weeks from the date of the order. The first question which arises is whether there is any specific provision in the Civil Procedure Code which applies to cases of the present kind. The only provisions on which reliance was placed on behalf of the defendants are those contained in Order 9, Rule 13 and Order 37 Rule 4 of the Civil Procedure Code. The learned Judge has held that neither of these two provisions can have any application. Mr. Daji, who appears on behalf of the defendants, concedes that Order 9. Rule 13 cannot possibly apply to the case of the present kind. The concession is rightly made, because a decree which is passed in a summary suit, on default of the defendant to comply with the terms of the order of conditional leave, cannot strictly be described as an ex parte decree. Mr. Daji, however, contends that the learned Judge was in error in holding that Order 37, Rule 4 does not cover a case of the present nature. Order 37, Rule 4, provides that alter a decree is passed under Order 37, Rule 2(2), "the Court may, under Special circumstances, set aside the decree and if necessary slay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit". According to Mr. Daji, the language of Order, 37 Rule 4 is reasonably capable of the construction that what is intended by the Legislature is that the Court which passes a decree, in default of the defendant to comply with the conditions on which he was permitted to defend the suit, must have jurisdiction to set aside that decree if the Court is satisfied that there are special reasons or special circumstances which make it necessary to set aside we decree. I find it difficult to accept the argument of the learned Counsel because, in the first place, to accept the construction canvassed by the learned Counsel is to frustrate the very object for which provision has been made in Order 37 for the trial of Summary Suits. Secondly, what is specifically provided in Order 37, Rule 4, is that after the decree is passed, the Court may set aside the decree and "may give leave to the defendant to appear to the summons...." This clause clearly shows that the power conferred by Rule 4 of Order 37 can be exercised only in cases in which the defendant has initially failed to appear in answer to the summons for judgment. What follows this clause is also important because what is mentioned thereafter is that the Court, after setting aside the decree in view of special circumstances, may give leave to the defendant to defend the suit on such terms as the court thinks fit. In other words, the Court has been given the power not" only to permit the defendant to appear in answer to the summons but the Court has also been given the power to fix the terms on which the defendant, at whose instance the proceedings are reopened, should be permitted to defend the suit. If the construction which Mr. Daji wants me to place on Rule 4 of Order 37 were to be accepted, then a somewhat startling consequence WILL ensue and the consequence is that the defendant who tails to comply with a conditional order will be in a more favourable position than the defendant who complies with a conditional order. Take a case in which an order of conditional leave is passed and the defendant Complies with the condition. It the defendant were to make a grievence of the condition on the ground that the condition was harsh oppressive no interference would normally be made m the exercise of revisional jurisdiction with the discretion of the trial Court. If, on the other hand, the defendant were to fail to comply with the order passed by the trial Court, then, according to Mr. Daji, it would be open to the Court not only to set aside the decree which followed the refusal of the defendant to comply with the order of conditional leave, but it would also be open to me defendant to have the matter reopened and to ask the Court to pass a fresh order of leave to defend the suit, regardless of what order was passed on the earner occasion. Such a consequence, involving a double opportunity to a defaulting defendant, could not have been intended by the Legislature. In my opinion, the limited object of Order 37 Rule 4 is to empower Courts to set aside decrees passed in cases in which the defendant has failed to appear in answer to the summons for judgment, if it appears to the Court that there are special circumstances by reason of which the defendant could not appear in answer to the summons. In other words, what is provider! by Order 37, Rule 4, is that the position which obtained at the institution of the summary suit should revive, an advantage of which the defendant could not avail himself should be made available to him because he had good reasons for not appearing in answer to the summons for judgment and that the defendant should be given leave to defend the suit on such conditions as the Court deems fit. For these reasons, I am of the opinion that the learned trial Judge was right in holding that the provisions of Order 37, Rule 4 cannot apply to a case in which a decree has been passed under Order 37, Rule 2(2) for failure of the defendant to comply with the terms of the conditional order.


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