Telangana High Court

Vooradi Vijaya Maruti Prasad vs Vengala Ramanaiah on 7 November, 2024

Author: K. Lakshman

Bench: K. Lakshman

     IN THE HIGH COURT FOR THE STATE OF TELANGANA
                                AT: HYDERABAD
                                      CORAM:
                    * HON'BLE SRI JUSTICE K. LAKSHMAN

   + CIVIL REVISION PETITION Nos.2145 AND 2169 OF 2024

% Delivered on: 07-11-2024

Between:
# Mr. Vooradi Vijaya Maruti Prasad                                       .. Petitioner
                                          Vs.
$ Mr. Vengala Ramanaiah                                              .. Respondent



! For Petitioner                                   : Mr. Gudi Madhusudhan Reddy

^ For Respondent                                   : Mr. Nambi Krishna



< Gist                                             :

> Head Note                                        :

? Cases Referred                                   :

1. CRP Nos.3028 & 3032 of 2019, dated 17.02.2023
2. (2003) 5 SCC 315
                                    2
                                                            KL,J
                                                    CRP Nos.2145 & 2169 of 2024




            HON'BLE SRI JUSTICE K. LAKSHMAN

   CIVIL REVISION PETITION Nos.2145 AND 2169 OF 2024

COMMON ORDER:

Heard Mr. Gudi Madhusudhan Reddy, learned counsel for the

petitioner and Mr. Nambi Krishna, learned counsel for the respondent.

2. Both the revisions are filed by the petitioner - defendant

challenging the orders, both dated 26.08.2020 in I.A. Nos.46 and 47 of

2019 in O.S. No.57 of 2018 passed by learned V Additional District

Judge, Karimnagar dismissing the petitions filed under Order - VII,

Rule - 4 CPC read with Article 23 of the Limitation Act and under

Order - XXXVII, Rule - 4 of CPC.

3. Perusal of record would reveal that originally respondent

herein filed a suit vide O.S. No.57 of 2018 against the petitioner

herein for recovery of money of Rs.16,85,260/- with future interest @

12% per annum on the basis of promissory note under summary

procedure laid down under Order - XXXVII, Rules - 1 and 2 of CPC.

Despite service of summons on the petitioner on 20.08.2018, the

petitioner herein did not appear before the trial Court on 31.08.2018

KL,J CRP Nos.2145 & 2169 of 2024

and, therefore, he was set ex parte on 12.09.2018. Thereafter, the trial

Court passed ex parte decree on 11.10.2018.

4. While so, the petitioner herein has filed two Interlocutory

Applications vide I.A. No.46 of 2019 under Order - XXXVII, Rule - 4

of CPC and Article - 123 of the Limitation Act, to set aside the ex

parte decree dated 11.10.2018 and I.A. No.47 of 2019 under Order -

XXXVII, Rule - 3(5) of CPC to grant leave to the petitioner to defend

the suit, on the following grounds:

i) The summons was served on him on 19.08.2019 at his house.

ii) At that time he was suffering from fever and body pains. He

went to Dr. Bhoom Reddy's Hospital for treatment and it was

diagnosed as Dengue fever and started treatment at the hospital

and at his house. He was advised house rest and not to move

from bed.

iii) Thus, he had undergone treatment for Dengue fever from

16.08.2018 to 30.08.2018.

iv) Under the said special circumstances, he could not appear before

the trial Court within ten (10) days.

5. The respondent herein filed counter opposing the relief

sought by the petitioner on the following grounds:

KL,J CRP Nos.2145 & 2169 of 2024

i. Since the petitioner did not appear within ten days after service

of summons, he was set ex parte. Therefore, the trial Court

decreed the suit on 11.10.2018.

ii. The petitioner filed the aforesaid applications on 08.11.2018.

iii. As per Rule - 4 of Order - XXXVII of CPC, the petitioner has

to show 'special circumstances' instead of 'sufficient cause'.

iv. The medical certificate filed by the petitioner is false as there is

no in-patient number etc.

v. In fact, the petitioner appeared before learned Additional Senior

Civil Judge Court at Karimnagar on 20.08.2018 and filed an

affidavit under Order - XXXVII, Rule - 3 (5) of CPC to defend

the suit in O.S. No.65 of 2018 during the alleged dengue fever

treatment i.e., 16.08.2018 to 30.08.2018.

vi. On 23.08.2018, the petitioner also appeared before learned I

Additional Judicial Magistrate of First Class, Karimnagar in

C.F. No.34 of 2018.

vii. He also appeared before learned III Additional District Judge on

24.08.2018 and 29.08.2018 as per the affidavit filed in I.A.

No.856 of 2018.

KL,J CRP Nos.2145 & 2169 of 2024

viii. Having appeared before the aforesaid Courts, what made the

petitioner in not appearing before the trial Court. The reasons

assigned by the petitioner for his non-appearance are false and

incorrect.

6. The trial Court vide order dated 26.08.2020, dismissed both

the applications filed by the petitioner vide I.A. Nos.46 and 47 of 2019

in O.S. No.57 of 2018 by observing thus:

i) The Medical Certificate filed by the petitioner does not

contain the in-patient number and it was issued on

prescription form. He also failed to submit the complete

blood report to prove his bona fides that he suffered from

Dengue fever.

ii) The petitioner did not dispute his appearance before other

Courts as contended by the respondent in the counter

along with certified copies of docket orders dated

23.08.2018 in C.F. No.34 of 2018, 24.08.2018 in O.S.

No.51 of 2018 and I.A. No.856 of 2018 etc.

iii) The petitioner received the summons on 19.08.2019. As

per Order - XXXVII of CPC, the petitioner ought to have

make his appearance within ten (10) days from the date

KL,J CRP Nos.2145 & 2169 of 2024

of receipt of summons, but made his appearance on

12.09.2018 i.e., much beyond the period of ten days.

iv) The reason assigned by the petitioner appears to be not

correct in view of his appearance before other Courts in

the cases mentioned above;

v) Thus, the ground urged by the petitioner cannot be taken

into consideration as 'special circumstance'.

vi) The plea taken by the petitioner that the provision under

Order - XXXVII, Rule - 2 of CPC is not complied with is

untenable for the reason that summons were issued to the

petitioner in Form No.4 of Appendix - B as per Order -

XXXVII, Rule - 2 of CPC. But, the only lacuna is found

that the cost particulars were not noted in the summons,

which is not a material factor, and it is only a procedural

lacuna.

vii) Though the date of hearing is noted as 12.09.2018 in the

summons, mentioning that the petitioner shall appear

within ten days from the date of service of summons, in

default the plaintiff will be entitled to obtain a decree for

KL,J CRP Nos.2145 & 2169 of 2024

the suit amount after expiration of the said period of ten

days.

viii) The report of process server dated 20.08.2018 forwarded

through the Superintendent; Central Nazarat discloses

that the summons was served on the petitioner along with

plaint copy in person on 19.08.2018.

ix) Thus, the petitioner failed to establish the special

circumstances to invoke the Order - XXXVII, Rule - 4 of

CPC for his non-appearance within ten days.

7. Aggrieved by the aforesaid orders, the petitioner - defendant

filed these revisions contending as follows:

i) The petitioner has shown the special circumstances to set aside

the ex parte decree and to grant leave to defend the suit.

ii) The trial Court has not given an opportunity to adduce the

evidence of doctor who issued medical certificate.

iii) In the aforesaid cases, other Courts considered the similar relief

sought by the petitioner.

8. On the other hand, learned counsel for the respondent would

contend that after receipt of summons, the defendant did not appear

before the trial Court within ten (10) days from the date of receipt of

KL,J CRP Nos.2145 & 2169 of 2024

summons and, therefore, the trial Court set him ex parte and,

thereafter, on consideration of entire material, decreed the suit. Even

the defendant did not show the special circumstances to set aside the

decree and, therefore, there is no error in the impugned orders.

9. In the light of the aforesaid rival submissions, this Court

called for original record from the Court of V Additional District

Judge, Karimnagar in O.S. No.57 of 2018. Perused the original

record.

10. Perusal of record would reveal that the respondent -

plaintiff filed the aforesaid summary suit vide O.S. No.57 of 2018

against the petitioner herein - defendant for recovery of Rs.16,85,260/-

with interest @ 12% per annum thereon from the date of filing the suit

till disposal of the suit. Initially, the plaintiff filed the said suit before

the Principal Senior Civil Judge, Karimnagar, on 16.07.2018 wrongly

and, therefore, the same was returned. The plaintiff has submitted the

said suit before the Principal District and Sessions Judge, Karimnagar,

on 23.07.2018. The Principal District and Sessions Judge took certain

objections on 24.07.2018 and, thereafter, after complying with the

same, the plaintiff again re-submitted the case on 31.07.2018. On

01.08.2018, learned Principal District and Sessions Judge numbered it

KL,J CRP Nos.2145 & 2169 of 2024

as O.S. No.57 of 2018 and made over to the Court of V Additional

District Judge, Karimangar. On receipt of the suit bundle, learned V

Additional District Judge, Karimnagar, issued suit summons to the

defendant on 07.08.2018 posting the matter to 12.09.2018.

11. Perusal of original record would also reveal that summons

in a summary suit under Form No.4 was issued by the office of the

trial Court on 07.08.2018 to the petitioner - defendant wherein the

petitioner - defendant was directed to cause his appearance to be

entered within ten (10) days from the service thereof by mentioning

the next date of hearing as 12.09.2018 at 10.30 A.M. On the backside

of the said summons, it appears that the petitioner - defendant signed

as received on 19.08.2018. In view of the same, the petitioner was

supposed to appear before the trial Court on or before 29.08.2018.

Despite posting the matter to 12.09.2018, it is not known as to why the

trial Court called the matter on 31.08.2018 and passed the following

order:

"Plaintiff and his counsel are present. Defendant is called absent and no representation on his behalf. Counsel for the plaintiff submits that the suit is filed U/O.37 Summary procedure where the defendant has to appear before this Court within

KL,J CRP Nos.2145 & 2169 of 2024

10 days from the service of summons. It is clear that summons was served on the defendant on 19/8/2018, but the defendant failed to appear before the Court till this day i.e., 31/8/18. As such plaintiff is entitled to obtain a decree.

               Heard the counsel for the plaintiff.               For
              consideration call on 12/9/18.
                                                     Sd/ 31/8/18."

12. On 12.09.2018, the learned trial Court passed the following

order:

"Plaintiff, defendant and their counsel are present. Though defendant is present today, as he failed to appear before this Court within 10 days from the service of the summons i.e., from 20/8/18 to 30/8/18, as such defendant is set exparte. For plaintiff's exparte evidence. Call on 11/10/18.

Sd/ 12/9/18."

13. On 11.10.2018, the learned trial Court passed the following

order:

"PW.1 is examined in Chief and exhibits A1 to A4 are marked through PW.1.

The evidence of the PW.1 coupled with the exhibits A1 to A4 proved the case of the plaintiff. Hence, the suit is decreed exparte with costs for Rs.16,85,260/- with future interest on the prl.amount of Rs.10,00,000/- @ 12% per annum

KL,J CRP Nos.2145 & 2169 of 2024

from the date of the suit till the date of decree and thereafter @ 6% per annum till realization.

Sd/ 11/10/2018."

14. Perusal of report dated 20.08.2018 submitted by the Court

staff would disclose that he received the summons in the subject suit

on 18.08.2018 and thereafter he served the same on the petitioner -

defendant on 19.08.2018. This itself shows that the summons in the

subject suit were served on the petitioner - defendant on 19.08.2018

and he supposed to cause his appearance before the trial Court within

ten (10) days i.e., on or before 29.08.2018. The trial Court should

have called the case on 12.09.2018, the date on which the suit was

posted instead of calling on 31.08.2018. On 12.09.2018, learned trial

Court should have considered the fact that the petitioner herein despite

receiving summons on 19.08.2018, failed to enter appearance within

ten (10) days i.e., on or before 29.08.2018.

15. For better appreciation, it is relevant to extract Form No.4 -

summons in a summary suit under Order - XXXVII, Rule - 2 of CPC

and the same is as under:

SUMMONS IN A SUMMARY SUIT (Order XXXVII, Rule 2) (Title)

KL,J CRP Nos.2145 & 2169 of 2024

To ............[Name, description and place of residence] Whereas,........................... has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs.................and interest, you are hereby summoned to cause and appearance to be entered for you, within ten days from the service hereof, in default hereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs....................and the sum of Rs..........................for costs, together with such interest, if any, as the Court may order.

If you cause an appearance to be entered for you, the plaintiff will thereafter server upon you a summons for judgment at the hearing of which you will be entitle to move the Court for leave to defend the suit. Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is defence to the suit on the merits or that it is reasonable that you should be allowed to defend.

Given under my hand and the seal of the Court, this............................day of...........................20........... Judge.]"

16. In view of the above, it is clear that in a summary suit, next

date should not be mentioned except requiring the defendant to cause

his appearance before the Court within ten (10) days from the date of

receipt of summons. If he fails to appear within the said ten (10) days,

the plaintiff will be entitled for a decree. In case the defendant enters

his appearance, then the plaintiff shall serve summons upon the

defendant for judgment at the hearing, the defendant will be entitled to

move the Court an application for leave to defend the suit. In the

present case, the trial Court did not follow the said procedure. Thus,

KL,J CRP Nos.2145 & 2169 of 2024

the procedure adopted by the trial Court is against the purport of Order

- XXXVII of CPC. Even the trial Court was wrong in mentioning that

the summons were served on the petitioner - defendant on 20.08.2018

as in fact the summons were served on him on 19.08.2018.

17. There is no dispute that there is negligence on the part of

the petitioner - defendant as he neither entered his appearance before

the trial Court within the ten (10) days nor at least filed the application

on the date when the suit was decreed on 11.10.2018. He filed the

aforesaid applications only on 08.11.2018.

18. It is the specific contention of the petitioner that on receipt

of summons on 19.08.2018, he approached his counsel who advised

him that the suit is posted to 12.09.2018 and, therefore, the petitioner

came to the Court on 12.09.2018, but the trial Court having recorded

his presence along with counsel, set him ex parte only on the ground

that he failed to enter appearance within ten (10) days from the date of

receipt of summons.

19. It is relevant to note that Order - XXXVII, Rule - 4 of CPC

deals with 'power to set aside decree', and the defendant has to

mention special circumstances to set aside the said decree. As

KL,J CRP Nos.2145 & 2169 of 2024

discussed above, in the summons dated 07.08.2018 in O.S. No.57 of

2018, the trial Court mentioned the next date of hearing as 12.09.2018

and the petitioner along with his counsel was present on 12.09.2018.

It is the counsel who has to advise the petitioner properly stating that

it is a summary suit and that the petitioner has to enter his appearance

within ten (10) days from the date of receipt of summons. The

petitioner's counsel failed to advise him properly.

20. It is relevant to note that the petitioner being layman insofar

as legal proceedings are concerned and, therefore, it is the duty of

counsel to apprise him the legal position properly. For the mistake

committed by learned counsel, the petitioner cannot be suffered.

21. It is also relevant to note that in similar circumstances

considering the said aspects, in Vooradi Vijaya Maruthi v. Vengala

Ramanaiah 1, this Court set aside the order dated 30.07.2019 passed

by learned III Additional District Judge, Karimangar in I.A. Nos.857

and 856 of 2018 in O.S. No.51 of 2018. The said suit was filed by the

respondent herein against the petitioner herein.

. CRP Nos.3028 & 3032 of 2019, decided on 17.02.2023

KL,J CRP Nos.2145 & 2169 of 2024

22. Perusal of record would also reveal that both the petitioner

and respondent herein are close friends and they were colleagues and

they worked as Junior Lecturers. Both of them retired. There are

seven (07) cases between them.

23. In Rajni Kumar v. Suresh Kumar Malhotra 2, the

Hon'ble Supreme Court considered the expression 'special

circumstances' and held as under:

"The expression "special circumstances" is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37 Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters,

. (2003) 5 SCC 315

KL,J CRP Nos.2145 & 2169 of 2024

namely, staying or setting aside the execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit."

In the same judgment, the Court considered the scope of order XXXVII Rule 4 and observed:

"It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons

KL,J CRP Nos.2145 & 2169 of 2024

and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered lo grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9."

24. In the affidavit filed in I.A. No.46 of 2019, the petitioner

specifically contended the reasons seeking leave. Without considering

the said aspects, the trial Court dismissed the aforesaid applications

vide order dated 26.08.2020. Therefore, the said orders dated

26.08.2020 in I.A. Nos.46 and 47 of 2019 in O.S. No.57 of 2018 are

liable to be set aside.

25. Both the Civil Revision Petitions are accordingly allowed

setting aside the orders, both dated 26.08.2020 in I.A. Nos.46 and 47

of 2019 in O.S. No.57 of 2018 passed by learned V Additional District

Judge, Karimnagar. I.A. Nos.46 and 47 of 2019 in O.S. No.57 of

2018 are allowed. Ex parte judgment dated 11.10.2018 passed by trial

KL,J CRP Nos.2145 & 2169 of 2024