Rajasthan High Court - Jodhpur

Chandan Singh vs Adringaram (2025:Rj-Jd:7034) on 4 February, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:7034]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                 AT JODHPUR


                S.B. Civil Writ Petition No. 15336/2024

Chandan Singh S/o Shri Ram Singh, aged about 40 years, R/o
Aakopadar, Post Shankhwali, Tehsil Ahore, District Jalore.
                                                                     ----Petitioner
                                      Versus
Adringaram S/o Shri Guneshaji, R/o Aahore, Tehsil Ahore,
District Jalore.
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Manohar Singh



               HON'BLE DR. JUSTICE NUPUR BHATI

Order

04/02/2025

1. The present writ petition has been filed by the petitioner

under Article 226 and 227 of the Constitution of India assailing the

order dated 28.11.2023 (Annex.6) passed by the Senior Civil

Judge, Jalore ('Trial Court'), whereby the application filed by the

petitioner under Order XXXVII Rule 4 and 7 of the Code of Civil

Procedure, 1908 ('CPC') has been dismissed and the order dated

20.05.2024 (Annex.7) passed by the District Judge, Jalore

('Appellate Court'), whereby the appeal preferred by the petitioner

against the order passed by the learned Trial Court (Annex.6) has

been dismissed.

2. In the instant writ petition, the petitioner has sought

following relief(s):

[2025:RJ-JD:7034] (2 of 9) [CW-15336/2024]

"It is, therefore, prayed that this writ petition may kindly be allowed and by an appropriate writ, order and/or direction:

a. By the appropriate writ, order or direction the Hon'ble high court as deems fit may kindly allowed the application filed by the petitioner 30.08.2022 (Annexure-4) under order 37 rule 4 & 7 of CPC.

b. the both learned lower court may kindly be directed to consider the application dated 30.08.2022 [Annexure-4] filed under order 37 rule 4 & 7 of CPC, so that the petitioner may have chance to take defense against the case filed against him under order 37 of CPC; and/or c. the Order impugned dated 28.11.2023 [Annexure-6] rejecting the application of the petitioner under order 37 rule 4 & 7 may kindly be quashed and set aside; and d. the execution case 01/2019 filed against the petitioner may kindly be quashed and set aside; and e. the Appellate Order impugned dated 20.05.2024 [Annexure-7] against the order dated 28.11.2023 rejecting the application of the petitioner under order 37 rule 4 & 7 may kindly be quashed and set aside; and f. any other appropriate writ, order or direction which this Hon'ble Court consider just and proper in the facts and circumstances of the Case may kindly be passed in favour of the Petitioner."

3. Briefly stated, the facts of the case are that a summary suit

was preferred by the respondent/plaintiff on 11.12.2017 against

the petitioner/defendant under Order XXXVII of the CPC on

08.12.2017 for recovery of Rs.3,30,000/- stating therein that the

plaintiff is doing business of timber in Ahore town. In the suit, it

was stated that vide Bill No.23 dated 14.12.2014 the petitioner/

defendant purchased timber of Rs.1,71,000/- while agreeing with

the terms of the payment i.e. interest @ 2/- per hundred under

his own signatures. Thereafter, despite repeated requests when

[2025:RJ-JD:7034] (3 of 9) [CW-15336/2024]

the payment was not made by the defendant, a registered notice

along with AD was also served upon, however, the payment was

not made. In the suit, it was further stated that even after receipt

of the registered notice, when payment was not made, the suit

was filed by the respondent/plaintiff. In support of the suit, the

respondent/plaintiff exhibited photostat copy of the Bill, Cash

Book of 2014-15 and relevant Books of Accounts, photostat copy

of registered notice along with AD receipts.

4. The summons of the suit were issued on 10.05.2018 under

Order 37 Rule 2 CPC and the same were served upon the

petitioner/defendant on 21.05.2018 and compliance thereof, the

defendant was required to remain present before the court and to

submit his registered address for proper service under Order 37

Rule 3 (1) CPC on him, however, despite service of the summons,

neither the defendant appeared appear before the Trial Court nor

through his counsel. In such circumstances, the learned Trial

Court proceeded to initiate proceedings exparte against the

petitioner/defendant.

5. The learned Trial Court thereafter proceeded to hear the

arguments finally and after considering the evidence produced

before it, vide exparte judgment and decree dated 02.11.2018

(Annex.2) proceeded to decree the suit for recovery of

Rs.3,30,000/-.

6. After passing of the judgment and decree dated 02.11.2018,

the respondent/plaintiff filed execution petition, which was

registered as Execution Case No.1/2019, wherein notice of

execution was issued and on receipt of the notice, the petitioner

[2025:RJ-JD:7034] (4 of 9) [CW-15336/2024]

claims that he came to know of passing of exparte decree dated

02.11.2018 and filing of execution petition by the

respondent/plaintiff.

7. The petitioner after coming to know of attachment of his

house in the execution proceedings, although the property was

self acquired property of his mother, the petitioner filed

application under Order XXXVII Rules 4 & 7 CPC on 30.08.2022

(Annex.4) seeking setting aside of the exparte decree dated

02.11.2018 (Annex.2), which came to be rejected by the learned

Trial Court vide order dated 28.11.2023 (Annex.6). Against the

order dated 28.11.2023 (Annex.6), the petitioner filed an appeal

before the Appellate Court, which was also rejected vide order

dated 20.05.2024 (Annex.7).

6. Aggrieved of the orders dated 28.11.2023 (Annex.6) and

20.05.2024 (Annex.7), the petitioner has preferred the present

writ petition.

7. Learned counsel for the petitioner submits that the learned

Trial Court and the learned Appellate Court have erred in rejecting

the application filed by the petitioner under Order XXXVIII Rule 4

and 7 of CPC, inasmuch as the learned Trial Court has passed an

exparte decree (Annex.2) without affording opportunity of being

heard to the petitioner causing serious prejudice to petitioner's

rights. He also submits that he was not having knowledge about

the decree (Annex.2) passed against the petitioner and it was only

on 05.08.2022 that the petitioner came to know about the decree

dated 02.11.2018. Learned counsel for the petitioner further

submits that the learned Trial Court and the learned Appellate

[2025:RJ-JD:7034] (5 of 9) [CW-15336/2024]

Court have not considered the fact that the petitioner was a

labourer who was working outside and, therefore, there was no

occasion for him to know about the decree being passed against

him. He thus submits that the learned Trial Court and the learned

Appellate Court ought to have considered the reasons as

submitted for not appearing before the learned Trial Court for the

disposition of the suit and should grant a leave to defend to the

petitioner to present his case. He also submits that on account of

COVID-19 Pandemic, prevalent in the State of Rajasthan and the

country, the petitioner was unable to do the needful in the matter.

8. Learned counsel for the petitioner further submits that the

counsel appearing on behalf of petitioner/defendant before the

learned Trial Court, unfortunately expired and, therefore, the

petitioner remained unrepresented before the learned Trial Court,

however, this aspect of the matter has not been considered by

both the Courts.

9. I have heard learned counsel for the petitioner at length and

have perused the material available on record.

10. This Court, at this juncture deems it apposite to refer to the

relevant provisions of CPC. Order XXXVII Rule 4 & 7 CPC, which

reads as under:

"ORDER XXXVII

xxx

3. Procedure for the appearance of defendant--. xxx (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and

[2025:RJ-JD:7034] (6 of 9) [CW-15336/2024]

leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,--

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith. (7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.

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.

Xxx

7. Procedure in suits.--Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner. "

[2025:RJ-JD:7034] (7 of 9) [CW-15336/2024]

11. This Court finds that the learned Appellate Court has taken

into consideration the findings of the learned Trial Court as well as

the application filed by the petitioner under Order XXXVII Rule 4

and 7 of CPC and observed that the summons were duly served

upon the petitioner on 21.05.2018 and his advocate Mr. Rajesh

Kumar put his appearance and raised an objection to the plaint

filed by the respondent-plaintiff. Furthermore, the learned

Appellate Court while dealing with the submission of the petitioner

that inasmuch as the notices were not issued to him under Order

XXXVII Rule 3 of CPC, has observed that Vakalatnama was

already filed on behalf of the petitioner, and after the issuance of

summons on 21.05.2018, the petitioner was required to appear

before the learned Trial Court in person, or through his counsel, or

submit his address for the service of notice, however, the

petitioner failed to do so and, therefore, the learned Appellate

Court concluded that under the given circumstances, the learned

Trial Court rightly proceeded exparte against the

petitioner/defendant. This Court concurs with the findings of the

learned Appellate Court that the petitioner was duly represented

and his counsel, however, the petitioner, without giving any

sufficient reason failed to appear before the learned Trial Court

within the stipulated time on account of which the proceedings

were initiated ex-parte. This Court finds that the learned Trial

Court has also considered the plea raised by the

petitioner/defendant that on account of death of counsel

appearing on behalf petitioner/defendant, the case remained

unrepresented. Suffice it to observe here that as per the pleadings

[2025:RJ-JD:7034] (8 of 9) [CW-15336/2024]

of the petitioner/defendant, his counsel (Mr. Rajesh Kumar)

expired in the year 2021, whereas the judgment and decree was

passed in the year 2018 (02.11.2018) i.e. much prior to passing

of the judgment and decree, therefore, the plea raised by the

petitioner/defendant that he remained unrepresented, cannot be

countenanced, inasmuch as even after having gained the

knowledge about initiation of attachment proceedings, the

petitioner/defendant has not made any effort and it was only in

the year 2022 that the petitioner/defendant filed application under

Order XXXVII Rule 4 & 7 CPC.

12. Moreover, this Court finds that both the learned Trial Court

and the learned Appellate Court had taken into account with the

reasons submitted by the petitioner in his application (Annex.4)

for seeking leave to defend/setting aside of the exparte decree

and have categorically observed that the petitioner took the

ground for his non-appearance on account of COVID-19 pandemic,

however the restrictions with regard to COVID-19 were

implemented from March, 2020 and therefore, this Court finds

that the learned Trial Court and the Appellate Court have rightly

concluded that the petitioner has failed to provide a sufficient

reason for the delay caused. Also, it is seen that the learned

Appellate Court has taken note of the fact that the

petitioner/defendant has raised the said objections after a delay of

six years, which goes unexplained, that too without providing

sufficient reasons points towards the fact that the petitioner is

trying to avoid the execution proceedings pending against him, by

way of filing the appeal before the Appellate Court. Therefore, the

[2025:RJ-JD:7034] (9 of 9) [CW-15336/2024]

learned Appellate Court vide order dated 20.05.2024 (Annex.7),

has rightly dismissed the appeal preferred against the order of the

learned Trial Court dated 28.11.2023 (Annex.6) rejecting the

application filed by the petitioner under Order XXXVII Rule 4 and 7

of CPC.

13. Thus, this Court finds that the application filed by the

petitioner under Order XXXVII Rule 4 and 7 of CPC, has been

rightly rejected by the learned Trial Court, which has rightly been

upheld by the learned Appellate Court, inasmuch as the petitioner

has not been able to bring out a reasonable ground for grant of

leave to defend by the Court as per Order XXXVII Rule 4 of the

CPC.

14. In the light of the discussion made herein above, this Court

concurs with the orders dated 28.11.2023 (Annex.6) and

20.05.2024 (Annex.7) and accordingly, the writ petition is

dismissed. Stay petition and misc. application(s), if any, also

dismissed.