Non-compliance with the mandatory provisions of Order 37 CPC, specifically Rule 3(4) and Rule 3(6), constitutes a special circumstance for setting aside an ex-parte decree.

Prakash Tatia, J.-Heard learned Counsel for the parties.

2. The petitioner is aggrieved against the order of the trial Court dated 20.08.2002 by which the petitioner’s application for setting aside the ex-parte decree, purported to have been filed under Order 9 Rule 13 CPC was dismissed.

3. Brief facts of the case are that the plaintiff filed the suit for recovery of principal amount of Rs. 60,000/-and interest thereon Rs. 22,800/-total Rs. 82,800/-. The suit was filed under the provisions of Order 37 CPC. The summons for defendant appearance under Sub-rule (1) of Rule 3 of Order 37 CPC were issued to the defendant upon which the defendant put in appearance in time through his Advocate on 20.09.2001. The trial Court ordered to issue summons for Judgment under Sub-rule 4 of Rule 3 of Order 37 CPC. The trial Court on 18.01.2002 held that the said summon has been served upon the defendant but nobody appeared despite service and thereafter, the trial Court decreed the plaintiff’s suit on 19.01.2002.

4. The petitioner submitted an application before the trial Court, for setting aside the ex-parte decree stating therein that the summons as required under Sub-rule 4 of Rule 3 of Order 37 CPC was not served upon the defendant-petitioner. The petitioner-defendant came to know about the said decree only when Sale Amin came to his resident on 25.07.2002 and informed that decree has been passed against the petitioner-defendant. The petitioner-defendant immediately after knowing about the Judgment and decree submitted the application on 27.07.2002 for setting aside the Judgment and decree. The trial Court held that the ex-parte decree can only be set aside in a special circumstance and not merely on showing that the service was not affected properly upon the defendant or for the reasons, which may be sufficient reasons under Order 9 Rule 13 CPC. The trial Court also held that since the application under Order 9 Rule 13 has been filed after the period of 30 days and no application under Section 5 of the Limitation Act has been filed by the petitioner, therefore, the application is barred by time and the trial Court dismissed the application of the defendant-petitioner. Hence, defendant-petitioner preferred this appeal.

5. Learned Counsel for the petitioner vehemently submitted that the mandatory provisions as provided under Sub-rule 4 of Rule 3 of Order 37 CPC have not been followed, which cast duty upon, the plaintiff to serve not only summons for Judgment in Form No. 4-A as provided in Appendix-B but plaintiff should also submit in Court an affidavit verifying the cause of action and the amount claimed and should state on oath that in his belief , there is no defence in the suit . This affidavit is required to be served upon the defendant so that in case, defendant does not rebut the facts mentioned in the affidavit, the Court may pass the decree against the defendant on the basis of said piece of evidence. In this case, no such affidavit was filed by the plaintiff in the Court below. Therefore, no question of its service upon the defendant arises; hence, the decree deserves to be set aside as has been passed without evidence and in violation of mandatory provisions of law.

6. I perused the facts of the case and considered the submissions of learned Counsel for the parties. Learned Counsel for the respondent vehemently submitted that in a matter of proceedings for setting aside the ex-parte decree passed under Order 37 CPC, the defendant can claim any relief on proving special circumstances and further in addition to the above, he has to plead ground of his defense against the suit claim. Learned Counsel for the respondent relied upon the Judgment of the Hon’ble Apex Court delivered in the case of Rajni Kumar vs. Suresh Kumar Malhotra & Anr. reported in JT 2003 (3) SC 307. It is also submitted that the trial Court itself issued the summons for Judgment under Sub-rule 4 Rule 3 of Order 37 CPC, therefore, it may be presumed that th