The High Court has ruled that “special circumstances and not just sufficient cause” was important for setting aside an ex-parte decree.
Underscoring that ‘Special Circumstances’ cannot be equated with ‘Sufficient Cause’ as provided under Order 9 Rule 13 of the Code of Civil Procedure, a vacation bench of Justice M K Hanjura said: “Order 37 Rule 4 of the Code of Civil Procedure provides distinctly, explicitly and in plain language that after the decree, the court may, under ‘Special Circumstances’, set aside the decree.”
The court dismissed a related plea filed by one Noor Muhammad Rah against decree by 2nd Additional District Judge, Srinagar on a suit filed against him by one Bashir Ahmad Wandroo.
Wandroo had filed a summary suit for the recovery of Rs 20 lakhs alongwith interest in the Court of the 2nd Additional District Judge, Srinagar, under Order 37 of the Code of Civil Procedure against Rah. The suit was determined by the 2nd Additional District Judge, Srinagar, by a judgment and decree on 5 June last year and, accordingly, Rah was directed to pay Rs 20 lakhs to Wandroo at the rate of 9 percent interest per annum together with the costs of the suit calculated at Rs 35,000.
“Therefore, on this analogy a cause which may be sufficient will not entitle an applicant to seek setting aside of an exparte decree. The ‘Special Circumstances’ have to be established and shown by the applicant to carve out a case in his favour. Not only this, in any case, where a decree is passed under Order 37 of the Code of Civil Procedure and an application is made for setting aside the same, the judgment debtor/ defendant has to disclose his defense.”
Referring to the plea, the court said Rah has not disclosed the facts as would impel the court to grant him the leave to defend the case.
“Looking at the enunciations of law and the facts and circumstances detailed in the revision petition (before 2nd additional judge), the order of the trial court appears to be a reasoned one. It does not call for any interference,” the court said and dismissed Rah’s plea.
While advocate Irshad Ahmad appeared for Rah, Wandroo was defended before high court by advocate Javed Iqbal.