Balwant Rai vs Mohan Lal

J.P. Singh, J.—These two Civil Revisions arise out of 2nd Additional District Judge Jammu's order dated 28.4.2004 whereby two

applications filed by herein petitioner Balwant Rai seeking setting aside of decrees passed in File No. 19/Civil and 20/Civil on 23rd November

2003 had been sought to be set aside.

Facts giving rise to these two Revision Petitions are these:

Mohan Lal respondent filed two suits under Order XXXVII of the CPC Samvat 1977 against Balwant Rai seeking recovery of an amount of Rs.

one lakh in each suit. These suits were registered as Civil Suit No. 19 and Civil Suit No. 20 by learned 2nd Additional District Judge, Jammu.

Pursuant to issuance of requisite notice under Order XXXVII of the Code, petitioner-defendant entered appearance within the statutory period of

10 (ten) days. Petitioner-defendant filed applications in the two suits seeking leave to defend the suits saying inter-alia that neither any money

transaction was there between the parties nor had the defendant executed or signed the Hundi. Petitioner-defendant had stated in the applications

that the respondent had filed a suit against the defendant-petitioner and his father titled Mohan Lal v. Balwant Rai and Anr. in the court of First

Additional Munsiff, Jammu wherein he had mentioned that he had to recover an amount of Rs. 4,50,000/-from the petitioner-defendant. The

petitioner says that he had kept Hundies with one Arun Kumar from where the plaintiff-respondent had got those Hundies so as to launch false

suits against the petitioner. It was stated by the petitioner in the petitions that he had liquidated the amount received from Arun Kumar and Mohan

Lal. The petitioner had specifically denied his signatures on the receipt and Hundi on which the plaintiff had filed the suits. As regards the plea of

the respondent-plaintiff that the petitioner had admitted and acknowledged before the Notary that his thumb impression and signatures were there

on the Hundies and receipt, the petitioner says that neither had any Notary come to him nor had he admitted his signatures or thumb impression on

any document before the Notary.

After the filing of this application by the petitioner before the trial court, the case appears to have proceeded on a snail's pace allowing

adjournments to the parties on mere asking. It appears that the petitioner-defendant was not present on 13.02.2002 when the trial court

proceeded exparte and adjourned the case to 26.02.2002. The defendant, however, filed an application for setting aside exparte proceedings and

appeared on the adjourned date. It further appears from the records that rather than deciding the application of the petitioner-defendant seeking

leave to defend, the suit, the trial court by a composite order, rejected the application for setting aside exparte proceedings holding that such

application was not maintainable. The trial court accordingly decreed the two suits on 23.11.2002. The petitioner thereafter filed applications on

24th of December 2002 seeking setting aside of decrees passed by the learned 2nd Additional District Judge Jammu in File Nos. 19/Civil and

20/Civil.

These two applications were dismissed by learned 2nd District Judge, Jammu on 28.04.2004 holding that as decrees under Order XXXVII of

the CPC were not exparte decrees so the applications did not warrant consideration. It was, however, noticed in this order of learned 2nd

Additional District Judge, Jammu that the then Presiding Officer of the court of 2nd Additional District Judge, Jammu had not passed any orders on

the applications of the petitioner whereby he had sought leave to defend the suit.

The present revision petitions have thus arisen in the background of above facts.

I have heard Shri V.K. Magoo for the petitioners and Shri M.L. Bhardwaj for the respondent in these two Revision Petitions. Records of the trial

court too have been perused.

Shri M.L. Bhardwaj, learned Counsel for the respondent raised a preliminary objection that the revisions were not maintainable u/s 115 of the

CPC because the petitioners having opted not to file regular appeals against the decrees dated 23.11.2002, in this Court, were estopped from

filing revision petitions to question the decrees of the court. Learned Counsel further urged that the revision petitions were not maintainable because

the order passed by the learned 2nd Additional District Judge, Jammu did not suffer from any error of law or jurisdiction.

Mr. V.K. Magoo, learned Counsel for the petitioner on the other hand submitted that prejudice had been caused to the petitioners, in that, the

pleas raised by them in their two applications seeking leave to defend the two suits had not been addressed to muchless adjudicated upon by the

trial court which had resulted in failure of justice.

The records of the trial court bear testimony to the fact that the petitions filed by the herein petitioners seeking leave to defend the two suits

pending before learned 2nd Additional District Judge, Jammu had remained undecided despite petitioner having done all what he was required to

do in terms of Order XXXVII of the Code of Civil Procedure. Learned 2nd Additional District Judge, Jammu too has acknowledged in the order

impugned in the revision petitions that the then Presiding Officer had not decided the applications of the petitioners seeking leave to defend on

merits.

It thus comes out that the petitioners had been deprived of the adjudication of their applications seeking leave to defend the suits. The grievance

of the petitioners, though noticed by the learned 2nd Additional District Judge, Jammu, was not addressed by him because he was of the view that

the decrees passed by the court under Order XXXVII of the CPC were not exparte decrees and in that view of the matter the court would not

have any power or jurisdiction to upset the decrees.

I do not accept as correct, the approach adopted by learned 2nd Additional District Judge, Jammu in closing the doors of justice to the

petitioners who had sought consideration of their pleas for allowing them leave to defend the suits. This approach, being hyper technical, has

resulted in causing prejudice to the petitioners besides resulting in failure of justice,

It is no doubt true that a decree passed by a civil court under Order XXXVII of the CPC is not an exparte decree and an application for

setting aside of such decree treating it to be an exparte decree would not lie, as such, yet, after noticing that the application of the petitioners

seeking leave to defend had remained undecided, the trial court was required to deal with the application taking such course which would serve the

ends of justice. The Legislature had vested requisite power in the court to deal with such situation and provisions of Order XXXVII Rule-4 of the

CPC could have been safely invoked by the trial court in dealing with the situation.

A litigant, should not suffer for the lapse or default of the court, is a position well recognized in law. Actus curie neminem gravabit supports this

view. It would be advantageous at this stage to refer to the provisions of Order XXXVII Rule-4 of the Code of Civil Procedure. It reads thus:

Order XXXVII Rule 4. Power to set aside decree.- After decree the Court may, under special circumstances, set aside the decree, and if

necessary stay 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.

Perusal of the rule extracted hereinabove demonstrates that the which had passed the decree under Order XXXVII of the CPC possessed

jurisdiction to give leave to the defendant to appear to the summons or/and to defend the suit if it was satisfied that there existed special

circumstances to set-aside the decree of the court and it was reasonable for the court to grant such leave on such terms as it thought fit.

Learned 2nd Additional District Judge, Jammu has noticed in the orders impugned in these Revision Petitions that the then Presiding Officer of

the court of learned 2nd District Judge, Jammu, had left the applications filed by the petitioner seeking leave to defend, undecided. This defect in

the proceedings, as noticed in the orders impugned in these revision petitions, was by itself a ""special circumstance"", as contemplated by Order

XXXVII of the Code of Civil Procedure. The 2nd Additional District Judge, Jammu was thus required to treat the applications of the petitioner as

applications under O. XXXVII Rule-4 of the Code of Civil Procedure, for nomenclature of the applications, or for that matter the provisions of

law cited in the application, would not debar the court to reach at the real difficulty of the litigants by invoking such provisions of the Code which

would facilitate the court in arriving at the rights of the parties by appreciating and considering the real grievances of the parties.

I do not find any substance in the submission of Shri M.L. Bhardwaj when he says that the petitioners having omitted to file regular appeals

against the decree was not entitled to move an application seeking setting aside of decrees passed by the trial court under Order XXXVII of the

Code of Civil Procedure. This is so because the petitioner had simultaneous remedies of filing appeals or approaching the trial court for redressal

of his grievance. The non-filing of appeals by the petitioners in this Court would not thus, in my opinion, debar him from moving the trial court

seeking setting aside of the decrees or for grant of leave to defend in view of the circumstances projected in the applications.

For all what has been said above, I find that the order dated 28 of April 2004 of learned 2nd Additional District Judge, Jammu passed in Files

No. 444/Misc and 445/Misc rejecting the applications of the petitioner is erroneous. This order is accordingly set aside.

In view of the stand taken by the petitioners in their applications seeking leave to defend the suits, inter-alia on the ground that they had neither

executed, nor signed the documents relied upon by the plaintiff in the suits and that there was no transaction of money between the parties who had

been litigating before filing of the suits before the 1st. Additional Munsiff, Jammu where the plaintiff had filed a suit against the petitioner-defendant

and his father seeking a restraint order against the petitioner and his father from selling 14 shops and a house situated at Old Janipura, Jammu, on

the basis of an agreement to sell which had been executed by the petitioner and had contained a clause in the agreement that the first party i.e. the

petitioners had failed to pay an amount of Rs. 4,50,000/- which was stated to have been obtained by fraud necessitating the execution of an

agreement to sell, I am satisfied that the petitioner-defendant had a substantial defence to raise in the suits. I, would therefore, allow the

applications of the petitioners, treating these applications as applications under Order XXXVII Rule-4 of the CPC and grant leave to the

petitioner-defendant to defend the suits subject to his filing security from a surety of substance and means.

As a consequence of allowing applications of the petitioner and granting him leave to defend the suits, decrees dated 23rd of November 2002

passed in Civil Suits No. 19/Civil and 20/Civil shall stand set aside. Parties through their counsel are directed to appear before learned 2nd

Additional District Judge, Jammu on 15.12.2006, who will decide the suit expeditiously.