Ramesh Chawla vs Ranjit Singh

Sat Pal, J.—This petition has been directed against the order dated 25.9.1997 passed by Sub Judge 1st Class, Chandigarh. By this order, the learned trial Court has framed the issues on application filed by respondent under Order 9 Rule 13 CPC and has adjourned the case for evidence of the applicant. Notice of this petition was issued to the respondent.

Mr. Tangri, the learned counsel appearing on behalf of the petitioner submits that in the present case the respondent has filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree dated 24.4.1996 passed under Order 37 CPC. He further submitted that the application under Order 9 Rule 13 CPC was not maintainable as Rule 4 of Order 37 CPC expressly gives power to a court to set aside decree passed under provisions of that Order. He further submitted that under Rule 4 of Order 37 CPC it was necessary for the defendant to show that "special circumstances" existed to set aside the decree whereas under Order 9 Rule 13 CPC, the defendant is not required to show special reason but he has only to satisfy the court that the defendant was prevented by any sufficient cause from appearing when the suit was called for hearing. In support of his submissions, the learned counsel placed reliance on a judgment of the Supreme Court in Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, and a judgment of Rajasthan High Court in Mohan Lai v. Om Parkash AIR 1989 Raj 132.

Mr. Kanwaljit Singh, the learned counsel appearing on .behalf of the respondent, however, submitted that both Order 9 Rule 13 CPC and Order 37 Rule 4 CPC provide for procedure for setting aside ex parte decree. He submitted that the only difference between the two provisions is that Order 9 Rule 13 provides for procedure for setting aside the decree passed in an ordinary suit whereas Order 37 Rule 4 CPC provides for procedure for setting aside a decree passed under Order 37 CPC. He, therefore, contended that the respondent-applicant should not be punished merely on this technical defect that wrong provisions of CPC have been mentioned in the application. He further submitted that the application filed by the respondent applicant can be treated as under, Order 37 Rule 4 CPC. He also submitted that there was no substantial difference between the words "special circumstances" mentioned in Order 37 Rule 4 CPC and "sufficient cause" mentioned in Order 9 Rule 13 CPC- In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in Chinammal and Ors. v. P. Arumugham and another, 26 All India Land Laws Reporter 240.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. It is not disputed that in the present case the ex parte decree dated 24.4.1996 was passed under Order 37 CPC which itself is an independent Code. Rule 4 of Order 37 CPC expressly gives power to a court for setting aside ex parte decree passed under Order 37 CPC. In view of the said provisions of CPC the applicant was required to file the application under Order 37 Rule 4 CPC. The question now arises that simply because wrong proviso of CPC have been mentioned by the applicant in the application, should the application be dismissed on this technical ground? The answer has to be in the negative particularly when both Order 37 Rule 4 CPC and Order 9 Rule 13 CPC provide for procedure for setting aside ex parte decrees. The only difference between the two said provisions of law is that whereas Order 37 Rule 4 provides for procedure with regard to an ex parte decree passed under Order 37 CPC, Order 9 Rule 13 CPC provides for procedure with regard to an ex parte decree passed in an ordinary suit. In view of this, the application filed by the respondent-applicant under Order 9 Rule 13 CPC can be treated as an application filed under Order 37 Rule 4 CPC as the evidence is yet to be led by the parties. In this connection reference may be made to a judgment of the Supreme Court in United Bank of India v. Naresh Kumar AIR 1997 S.C. 3 wherein it was observed as under:-

"there is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible, a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."

It is true that under Order 9 Rule 13 CPC the defendant is required to satisfy the court that he was prevented by any sufficient cause from appearing in the court whereas under Order 37 Rule 4 CPC, the defendant is required to show that "special circumstances" exist to set aside the decree but there is no substantial difference between the words "sufficient cause" and "special circumstances". In any case the evidence on the application filed by the respondent-applicant is yet to be led and while deciding the application, the learned trial Court should examine as to whether "special circumstances" in terms of Order 37 Rule 4 CPC existed to set aside the ex parte decree. Since the application filed by the respondent applicant is being directed to be treated as an application under Order 37 Rule 4 CPC and the application is yet to be disposed of, the judgment of the Supreme Court in the case of Ramkarandas Radhavallabh (supra) and the judgment of the Rajasthan High Court in the case of Mohan Lal (supra) are not applicable to the facts to this case.

For the reasons recorded hereinabove, I do not find any merit in this petition and accordingly, the petition is dismissed. 1, however, direct the learned trial court to treat the application filed by the respondent applicant under Order 37 Rule 4 CPC instead of an application under Order 9 Rule 13 CPC and dispose of the same under Order 37 Rule 4 CPC. With this direction the petition stands disposed of. The observations made hereinabove shall not have any bearing on the merits of the case.