Allowed

Vooradi Vijaya Maruthi v. Vengala Ramanaiah

Telangana HC17 Feb 2023CRP/3028/2019

Case brief

AI extract

What is this about?

The High Court allowed two civil revision petitions under Article 227. Setting aside a lower court order that dismissed applications to set aside an ex parte decree and grant leave to defend, the Court found the trial judge committed a jurisdictional error by failing to appreciate special circumstances and the petitioner's presence.

What did the court decide?

Both civil revision petitions allowed; the order dated 30.07.2019 in I.A.Nos.857 & 856 of 2018 in O.S.No. 51 of 2018 is set aside.

Vooradi Vijaya Maruthi Vs Vengala Ramanaiah — Execution and Attachment | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY,THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

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CIVIL REVISION PETITION NO: 3028 & 3032 OF 2019

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CIVIL REVISION PETITION NO: 3028 OF 2019

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Petition under Arlicle 227 of the Constitution of India, aggrieved by the order dated 30/7/2019,^passed in i.A.No.857l2018 in O.S. No. 51/2018, on the file of III Additional District Judge at Karimnagar.

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Between:

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Vooradi Vijaya Maruthi, s/o Shankaraiah aged about 61 years Occ:retired employee, Rl/o H.No. 3-7-492. Vavilapally, karimnagar.

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...PETITIONER

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AND

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Vengala Ramanaiah, S/o Pochalu, aged about 71 years Occ- retired employee and Advocate Fl/o H.No 3-7-317 Vavilapally, Karimnagar.

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...RESPONDENT

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CIVIL REVISION PETITION NO: 3032 OF 2019

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Petition under Artide 227 of the Constatution of India, aggrieved by the order dated 3O/7/2019, passed in I.A.No.856/2018 in O.S. No. 51/2018, on the file of III Additional District ludge at Karimnagar.

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Between:

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Vooradi Vijaya Maruthi, s/o Shankararah aged about 61 years Occ:retired employee, Rl/o H.No. 3-7 -492. Vavilapally, karimnagar.

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...PETITIONER

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AND

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Vengala Ramanaiah, S/o Pochalu, aged about 71 years Occ- retired employee and Advocate R/o H.No. 3-7-317 Vavilapally, Karimnagar.

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...RESPONDENT

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Counsel for the Petitioner :SRI GUDI MADHUSUDHAN REDDY

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Counsel for the Respondent : SRI RAMACHANDAR RAO VEMUGANTI

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(ln both Civil Revision Petition's)

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The Court made the following : COMMON ORDER

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TIIE HONOURABLE SRI JTJS-TICE A.SANTHOSH REDDY

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C.R.P.Nos.302tl & 3032 OF 2019

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COMMON ORDER:

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These two civil revision petitions under Article 227 of the Constitution of India are directed against the common order dated 30.07 .2019 in I.A.Nos.857 & 856 of 20 I 8 in O.S.No.5 I of 201 8, on the file of the Ill-Additional District .ludge, Karimnagar, wherein the said applications filed by the petitioner herein under Order XXXVII Rule 3(7) of the Code of Civil l)roccdurc (in short, the CPC') to grant leave to defend the suit and uncler Article 123 of the Limitation Act and under Order XXXVII Rulc 4 CPC to set aside the ex parte decree dated 31.08.2018. were distttissctl.

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Heard the learned counsel lirr the petitioner and leamed counsel for the respondent in both thc revisions. Perused the record. 3. The petitioner-defendant and respo nclent-plaintiff in both the revisions are one and the sarne.^'l he respondent herein filed the suit O.S.No.5l of 2018 lor recovcry ol' nroney based on a promissory note dated 14.12.2015.^'l'he said srrit rvas decreed ex porte on 31.08.2018. Immediately, the petitioner liled I.A.No.857 of 2018

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under Order XXXVII Rule 3(7) CPC to grant leave to def-end thc suit and another application in I.A.No.856 of 2018 undcr Order XXXVII Rule 4 CPC to set aside the ex parte decree dated 31.08.2018. The Court below dismissed both the applications by the impugned common order on the ground that the petitioner lailed to prove that he is entitled for the reliefs prayed in the said applications. Challenging the same, the present revisions are tlled by thc pct it ioner-defendant.

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Lcarned counsel for the petitioner submits that the Court below committed error in dismissing both the applications without any valid reasons; that summons in the suit wcrc served on the petitioner on 03.08.2018 fixing the date ol' hcaring oll 24.08.20 lll; that petitioner approached an Advocate and he fllcd vakalath; that petitioner was suffering from ill-health ancl tt'rok rrearmcnr tiorn 04.08.2018 to 16.08.2018 and he could not atrend rhc Court within ten days from the date of service ol surnrnons. as requircd under Rule 3(1) of Order XXXVII CPC; that suit was postcd to 29.08.2018; that in spite of presence ol thc pctitioncr.rn that day, hc was set ex parte and an ex parle decrec was passed on

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'-7, /.

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31.08.2018; and petitioner had got good defence to detbnd the case. Learned courtsel prayed to set aside the impugned order.

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On the other hand, Ieamed counsel for the respondent while supporting the impugned order subrnits that the Court below had rightly set the respondent ex porte, as he f'ailed to appear before the cou( despite services of summons. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in TVC SKYSHOP LTD. v. RELIANCE COMMUNICATION AND INFRASTRUCTURE LTDI.

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Thus, on hearing the submissions of both the learned counsel and upon perusing the material on record, the cluestion that arises for consideration is - whether the impugned order is sustainable in law? '7. The respondent herein filed the suit O.S.No.5l ol'2018 under Order XXXVII Rules 1 and 2 CPC for recovcry ol nroncy based on a promissory note dated 14.12.2015. Sunrnrons in thc suit were serued on the petitioner directing him to appear belbre the Courl on 24.08.2018. As the regular Presiding Ofllccr !'as on leave, the matter was posted to 29.08.2018. Though thc 1;ctitioner was present

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,2014 (2)ALD 24 (SC)

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on that day, he was set ex parte and an ex parte decree came to be passed on 31.08.2018. The petitioner neither filed an application to grant leave to delend his case nor submitted anything to the Court and as such the trial Court decreed the suit in terms of Order XXXVII CPC. Subsequently, the petitioner filed I.A.No.857 of 2018 undcr Order XXXVII Rulc 3(7) CPC to grant lcavc to defend the suit and another application in I.A.No.856 of 201 8 under Order XXXVII Rulc 4 CPC to set aside the ex parte decree dated 3 1.08.20 r8.

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The trial Court in the impugned order observed that the petitioner lailed to show any valid reasons for his absence and has not propcrly proved with any reliable documentary evidence that he sultbred ill-hcalth and that he also failed to file any application seeking leavc to dcf'end the suit.

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The^judgrnent relied on by leamed counsel for the respondent in TVC SKYSIIOP LTD. (supra), the Hon'ble Apex Court held at paraglaphs ll and 9 as under:

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"An analysis of Order XXXVII shows that the provisions contained therein are applicable to the suits specified in Rule 1(2). Rule 2(1) prescribes the particulars to be incorporated in the suit. Sub-rule (3) of Rule 2lays down that the defendant shall not defend the suit unless he enters

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appearance and in default of his appearance, the allegations contained iin the plaint shall be deemed to be admitted and the iplaintiff shall be entitled to a decree for a sum not exceeding the sum specified in lhe summons together with interest at the specified rate, if any. Rule 3 contains the procedure for the appearance of the defendant. Sub+ule (5) prescribes time limit of ten days from the service of summons for.iudgment within which the defendant can apply for leave to defend. The concerned Court can^grant leave to defend unconditionally or conditionally. First^proviso to this sub-rule lays down that leave to defend cannot be refused unless lhe Court is satisfied that the facts disclosed by the defendant do not indicate that he has substantial defence or that the defence is frivolous or vexatious. Second^proviso to sub-rule (5) lays down that if the defendant admits part of the amounl claimed by the plaintiff then he shall not be granted leave to defend unless the admitted amount is deposited in the Court. Sub-rule (6) provides for the consequences of the defendant's failure to apply for leave to defend or refusal of^prayer for leave to defend. ln such an eventuality, the plaintiff is entitled to^judgment forthwith. Sub- rule (7) lays down that if the defendant is able to show sufficient cause, the Court can excuse the delay in entering of appearance or in making an application for leave to defend. Rule 4 gives power to the Court to set aside the decree provided special circumstances exist for doing so. The Court can also stay or set aside execution and^grant leave to the defendant to defend the suit.

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The expression "special circumstances" appcaring in Ordcr XXXVII Rule 4 was considered by this firurr in 1la2ri Kumar v. Suresh Kumar Malhotra 2003(4) AI-D 8l (S(') ' 003) 5 SCC 315 and it was observed:

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"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 mmplex. ln its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. lt is an antonym of common, ordinary and general. lt is neither practicable nor advisable lo enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. ln 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

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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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In the sarnc judglncnt, the Court considered the scope of

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order XXXVII Rule 4 and observed:

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"lt is impo(ant to note here that the power under Rule 4 of Order 37 is not confaned 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, 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. lt is not permissible to claim such reliefs in successive petitions as il 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 courl is empowered lo grant leave to the defendant to appear to the summons and to defend the suit in the same application. lt 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. ln this respect, Rule 4 of Order 37 is different from Rule 13 of Order I^"

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In the casc on hand, thc trial Court has not properly considered the applications Illed by the revision petitioner. 'l'hc petitioner plcaded in the affrdavit filed in support of thc application that clue to ill-health, he has undergone treatment for clcnguc l*,cr lionr 04.08.20 ltt to 16.08.2018 and under sorne

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special circurrstances, he failed to appear befbre the Court. However, he appeared before the Court on 29.08.2018 and despite his presence, the Court below passed the ex porte decree on 31.08.2018, as he failed to file an application under Order XXXVII Rule 7 CPC seeking leave to defend the suit. Apafl from that, at paragraph i ol the affidavit, the petitioner stated the special circumstances seeking leave to defend the suit that he did not execute a promissory note in favor of the respondent-plaintifT and there was no transaction as pleaded by him, including the suit amoulrt and that there are no witnesses to the alleged promissory note and he r.vas r.rot scribe of the contents of the alleged promissory note

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I l. As seen li-om the record, it appears that the petitioncr was present in the Court on the day when he was set er park. fhe counsel ought to have sought time to file an application seekin-u leave to detcnd the case of the petitioner, but he failed to do soTherefore, I tind that the applications filed by the petitioner to^set aside the ex porte decree and to grant leave to def'end^{the suit} disclose special circumstances which^justify allorving^the applications by giving him an opportunity by setting aside^the

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ex parte decree and permitting hirn to grant leave to defend the case. Further, this Court is also of thc view that the petitioner was not properly guided by [ris counsel and for the fault of his counsel, the party shalt not be made to sul'Gr.

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For the lbregoing rcasons, I am of the view that the trial Court has not properly apprcciated thc provisions of Order XXXVII CPC and the irnpugned order su lf-e rs liom inlirmity. The trial Court committed^{jurisdictional} error warranting interference by this Court under Article 227 ol thc Constitution ol India.

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Accordingly, both the civil revision pe'titions are allowed. The order dated 30.07.20 19 in I.A.Nos.857 & 856 of 2018 in O.S.No.5l ol 20 I8. on the ljlc ol'the lll-Additional District Judge, Karimnagar, is hcrcby set asidc. Consequently, I.A.Nos.857 and

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856 of2018 stand allowcd.^' rcre shall bc no order as to costs.

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Sd/. MOHD. SANAULLAH^AN ARI ASSISTANT REGIS RAR

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//TRUE COPY' SECTION FFICER

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To,

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