Saynabi And Ors vs Shakuntla Gandhi (2025:Rj-Jd:40998)
2025 Latest Caselaw 13216 Raj

Citation : 2025 Latest Caselaw 13216 Raj
Judgement Date : 15 September, 2025

Rajasthan High Court - Jodhpur

Saynabi And Ors vs Shakuntla Gandhi (2025:Rj-Jd:40998) on 15 September, 2025

[2025:RJ-JD:40998]

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR

                 S.B. Civil Misc. Appeal No. 1233/2006

1.   Saynabi D/o late Yakub Bhai, age 13.
2.   Salma D/o late Yakub Bhai, age 10.
3.   Wasim S/o late Yakub Bhai, age 8
     All three Minor through natural guardian and uncle (Chacha)
Ramjani S/o Kasam Ji Lakhara, R/o Railway Station Road,
Opposite Police Chowki No.6, Jodhara, District - Panchmahal,
Gujrat, at present R/o Banswara
                                                                  ----Appellants
                                     Versus
Smt.     Shakuntla    Gandhi       W/o       Hiralal,     R/o    Mohan   Colony,
Banswara, District Banswara
                                                                 ----Respondent


For Appellant(s)           :    Mr. P. Nayak
For Respondent(s)          :    Mr. K.C. Sharma



           HON'BLE MR. JUSTICE SANDEEP TANEJA

Judgment

15/09/2025

1. This misc. appeal is directed against the order dated

20.07.2006 passed by the learned Additional District Judge,

Banswara (for short 'the learned Trial Court'), whereby the

learned Trial Court dismissed the application filed by the

appellants-defendants under Order 37 Rule 4 of Code of Civil

Procedure (for short 'CPC').

2. Brief facts of the case are that the respondent-plaintiff

filed a civil suit under Order 37 of CPC for recovery of

Rs.75,000/- against the appellants and their mother Smt.

Hasina. It was stated in the plaint that late Yakub Bhai, father

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of the appellants had obtained a loan of Rs.75,000/- from the

respondent-plaintiff. He issued a cheque in favour of the

respondent-plaintiff to repay the loan amount. Since Mr. Yakub

Bhai died on 15.06.2003, the respondent-plaintiff could not

deposit the said cheque in her account. It was further stated

that as the appellants and their mother inherited the property

of Mr. Yakub Bhai, therefore, they were jointly and severally

liable to repay the loan amount to the respondent-plaintiff.

2.1 Upon service of summons, Smt. Hasina (defendant No.1 in

the Civil Suit) appeared and filed her registered address. She

also appeared on behalf of the appellants (defendant Nos.2 to

4), as their guardian. Thereafter, Smt. Hasina filed an

application before the learned Trial Court under Order 32 Rule 3

of CPC for appointment of guardian of the appellants. The

learned Trial Court by order dated 10.02.2004 allowed the said

application and appointed Advocate Mr. Manoj Singh as their

Guardian. Smt. Hasina died on 16.02.2004.

2.2. Mr. Manoj Singh, court appointed guardian, was served

with summons for judgment in accordance with law. However,

thereafter, he did not appear. He even did not file application

seeking leave of the learned Trial Court to defend the suit. The

learned Trial Court, thus, by judgment and decree dated

24.05.2004 decreed the suit in favour of the respondent-

plaintiff.

2.3 The appellants, thereafter, through their Court appointed

guardian filed an application under Order 37 Rule 4 of CPC

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seeking setting aside of the aforesaid ex-parte decree. It was

stated in the application that Mr. Manoj Singh had gone to

Mumbai for cardiac surgery of his father in law and, therefore,

could not appear before the court. The learned Trial Court did

not find the same to be a sufficient reason to set aside the ex-

parte decree and consequently dismissed the application by

impugned order dated 20.07.2006. Hence, this appeal.

3. Learned counsel for the appellants has submitted that

non-appearance of Mr. Manoj Singh, Court appointed guardian,

was not intentional as he was out of station for medical

treatment of his father in law. The counsel has further

submitted that this was a sufficient reason for setting aside the

ex-parte decree and granting leave to the appellants to defend

the suit.

4. On the other hand, learned counsel for the respondent has

submitted that the appellants through their guardian were duly

served with the summon for judgment, however, they did not

file any reply nor application seeking leave to defend within the

stipulated period of 10 (ten) days. Learned counsel has further

submitted that the application under Order 37 Rule 4 CPC was

filed after a delay of 22 months without giving any sufficient

cause for such delay and, therefore, the learned Trial Court has

rightly dismissed the said application.

5. Heard learned counsel for the parties and perused the

record.

6. Order 37 Rule 4 CPC reads as under :-

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"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."

A perusal of the above provision reveals that the Court is

empowered to set aside the decree and if necessary stay or

setting aside the execution and give leave to the defendant to

appear to summons and to defend the suit only under special

circumstances.

7. The Hon'ble Supreme Court in the case of Rajni Kumar

vs. Suresh Kumar Malhotra & Anr. reported in (2003) 5

SCC 315 held that it is not enough for the defendant to show

special circumstances which prevented him from appearing or

applying for leave to defend, but he has to also show by

affidavit or otherwise, facts which would entitle him leave to

defend the suit.