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2003 Supreme(Bom) 634
IN THE HIGH COURT OF BOMBAY
Bobde S.A., J.
Indian Express Newspapers (Bombay) Limited .... Plaintiff.
Versus
Shiv Kapooria others.... Defendants.
Notice of Motion No. 959 of 2003 in Summary Suit No. 23 of 2001, decided on 19-6-2003.
Advocates appeared :
V.R. Dhond, Ms. Menon, i/b. Humranwala Co., for defendants in support.
D.D. Madon, i/b. Ms. Poorvi Kamani, for plaintiff to show cause.
Headnote:Civil Procedure Code, 1908 - Order XXXVII, Rule 4, Section 9-A (as inserted by Maharashtra Amendment Act of 1970) - Setting aside of decree - Power of Court - Under special circumstances - Not in existence when Court passed decree - Not brought to notice of Court when it passed decree. - On a plain reading of Rule 4, it appears that the power is conferred on the Court to set aside the decree under special circumstances i.e. to say circumstances which are not ordinary and usual.
The Court may set aside a decree under special circumstances, it had in mind, circumstances mainly factual in nature like the defendants being prevented from appearing in Court or in some way disabling from appearing in Court or presenting his case. In any case, it appears that Parliament intended that the circumstances should be circumstances not in existence when the Court passed the decree or if in existence, not brought to the notice of the Court when it passed the decree
Civil Procedure Code, 1908 - Order XXXVII, Rule 4 - Setting aside of decree - Powers of Court - Special circumstances for setting aside decree - Special circumstances pleaded by defendant ordinary and usual - Not in existence when Court passed decree - If in existence not brought to notice of Court - Not to be considered in review petition. - On a plain reading of Rule 4, it appears that the power is conferred on the Court to set aside the decree under special circumstances i.e. to say circumstances which are not ordinary and usual. The circumstance pleaded by the defendants is that this Court had no legal authority under Section 9-A to decree the suit while the question of jurisdiction was pending consideration in the application for revocation of leave under Clause 12. Firstly, this is a circumstance that existed before this Court passed a decree and though this circumstance is not considered by the Court in its judgment and decree, both the Counsel admit that this issue was argued before the Court. The other circumstances that is referred to is the circumstance of the plaintiff having applied for an adjournment before the Chamber Judge on 7.1.2001 and then praying for a decree on 14.1.2001. It appears that both these circumstances are common and ordinary in the sense that they are usual grounds of law that are taken by parties in an Appellate Court. It appears that when Parliament provides that the Court may set aside a decree under special circumstances, it had in mind, circumstances mainly factual in nature like the defendants being prevented from appearing in Court or in some way disabling from appearing in Court or presenting his case. In any case, it appears that Parliament intended that the circumstances should be circumstances not in existence when the Court passed the decree or if in existence, not brought to the notice of the Court when it passed the decree. Otherwise, any other interpretation, would enable the defendants to turn the application for setting aside the decree into a review petition or even into a full-fledged appeal. Therefore, even if the term "special circumstances" is not to be construed restrictively, it cannot be construed so widely as to allow all sorts of pleas which could have been and have been, in fact, taken before the Court which passed the decree, to be taken again in the same Court, Court thinks that in such a situation, the defendants must file an appeal.
"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."
Thus, the real question for determination is whether there are special circumstances to set aside the decree.
2.The plaintiff filed the suit for recovery of money after obtaining leave under Clause 12 of the Letters Patent. In this suit, the plaintiff took out a summons for judgment which was served on the defendants on 18-4-2001. They were served with a writ of summons under Order XXXVII on 24-2-2001.
3.The defendants applied for revocation of this leave under Clause 12 on 27-9-2002. Having done so, they applied for stay of the summons for judgment taken out by the plaintiff. This stay was refused on 11-10-2002 by the Court trying the summons for judgment. In the Chamber Summons for revocation of leave under Clause 12, the pleadings were complete. On 7-1-2001 when the matter came up before the Judge hearing the chamber summons for revocation of leave under Clause 12, the plaintiff sought an adjournment. The matter was adjourned to 14-1-2001 on which date the learned Chamber Judge did not preside. On this very date, the Court hearing the summons for judgment decreed the suit under Order XXXVII, Rule 3 of the C.P.C. on the ground that there is no reply filed by the defendants nor is there any affidavit disclosing the ground on which the leave to defend can be granted. The defendants seek to set aside this decree.
4.Mr. Dond, learned Counsel for the defendants, submitted that the decree must be set aside because it was the plaintiff who sought an adjournment on 7-1-2001 before the learned Chamber Judge and thereby prevented the decision on the application for revocation of leave under Clause 12. Moreover, according to the learned Counsel, the application for revocation of leave under Clause 12 was really an application which questioned the jurisdiction of this Court to entertain the suit and, therefore, on the principle underlying section 9-A of the C.P.C., this Court had no jurisdiction to decree the suit. According to the learned Counsel, under section 9-A of the C.P.C., the Court is not entitled to grant anything more than an interim relief pending determination of the issue of jurisdiction. A fortiori the Court has no jurisdiction to dispose of the suit itself when the application for revocation of leave under Clause 12 was pending. I do not propose to examine the merit of this contention without determining whether this would be a special circumstance for setting aside the decree within the meaning of Order XXXVII, Rule 4 of the C.P.C. Ultimately, if this and the other circumstances are not special circumstances, this Court would decline to exercise the jurisdiction to set aside the decree.
5.On a plain reading of Rule 4, it appears that the power is conferred on the Court to set aside the decree under special circumstances i.e. to say circumstances which are not ordinary and usual. The circumstance pleaded by the defendants is that this Court had no legal authority under section 9-A to decree the suit while the question of jurisdiction was pending consideration in the application for revocation of leave under Clause 12. Firstly, this is a circumstances that existed before this Court passed a decree and though this circumstance is not considered by the Court in its judgment and decree, both the learned Counsel admit that this issue was argued before the Court. The other circumstances that is referred to is the circumstance of the plaintiff having applied for an adjournment before the learned Chamber Judge on 7-1-2001 and then praying for a dec
