In order to set aside an ex parte decree passed under Order 37, Rule 2(3) of the CPC, the defendant must show "special circumstances" that prevented him from appearing in court and obtaining leave to defend the suit, as well as a good, substantial, and/or meritorious defense in the suit.

1. The present application has been made by the defendant, Madan Singh Nirala, under Order 37, Rule 4 read with Section 151, Code of Civil Procedure, for setting aside the decree dated 15-1-1999 passed in Civil Suit No. 83 of 1998, under Order 37, Rule 2(3), Code of Civil Procedure.

2. The facts giving rise to the present application are these. The plaintiff Tirlok Singh Thakur filed a suit against the defendant for the recovery of Rs. 5,33,750/- on the basis of an agreement dated 12-7-1998 under Order 37, Rule 1, Code of Civil Procedure. Summons of the suit as contemplated under Rule 2(2) of Order 37, Code of Civil Procedure dated 19-12-1998 were served on the defendant through his mother Smt. Shakuntla on 29-12-1998. In spite of having been so served, the defendant failed to put in appearance within the stipulated period of ten days. Consequently, in default of the defendants entering appearance, the allegations in the plaint were deemed to be admitted and a decree for a sum of Rs. 5,33,750/- with costs along with interest at the rate of 18% per annum from the date of suit, that is, 30-11-1998, till the date of payment of the decretal amount was passed in favour of the plaintiff and against the defendant.

3. In seeking the setting aside of the decree dated 15-1-1999, the defendant has averred in paras 2 to 4 of his application as under:- "2. that the applicant/defendant had been directed by the Honble High Court to put his appearance within ten days or on as per the notice served upon defendant on 29-12-98 but the applicant failed to put his appearance on the said date that is 7-1-99 or within ten days for reasons beyond his control. The applicant had to come to Shimla in the morning of 7-1-99 from village Bazza, P.O. Jarol, Tehsil Kumarsain in order to put his appearance but was prevented as there wa s a heavy snow fall on that date. The applicant, while coming to Shimla had to cross through Narkanda but unfortunately the vehicular traffic was completely suspended on 7-1-99 due to snow fall. Since the notice served upon the applicant had mentioned that the case would be listed on 7-1-99 and time of 10 days for putting appearance was also expiring on 8-1-99, the applicant had decided to come to Shimla on 8-1-99.

3. That the applicant despite best of his efforts and endeavour could only manage to reach at Shimla in the High Court premises on 8-1-1999 about 4.30 p.m. There were no lawyers in the Court at that time and the applicant, thereafter consulted some officials of the High Court Registry regarding this case and was told that now the High Court had been closed on account of the Winter Vacations and now it would reopen on 22-2-99 and the regular civil matters will be taken after the vacations. The applicant under the bona fide belief that the case will be now listed after completion of holidays left Shimla on 9-1-99.

4. That the applicant again visited Shimla on 2-2-99 and engaged a counsel to defend his case. The applicant on 3-2-99 along with his counsel went to the High Court in order to know the fate of his case. It was revealed by the Registry of the High Court that the abovementioned case had already been decreed ex parte on 15-1-99. The applicants counsel applied on the same day for certified copy of the said decree and procured the same on 22-2-99."

4. The application is being resisted by the plaintiff, who after having denied the averments of the defendant, has pleaded that the defendant has not been able to make out sufficient and reasonable grounds for setting aside the decree.

5. On the pleadings of the parties, following issues were framed on 4-5-1999 :-.

1. Whether there are sufficient grounds for setting aside decree dated 15-1-1999 ?.

2. Relief.

6. I have heard the learned counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under :

7. Issue No. 1 Rule 4 of Order 37, Code of Civil Procedure, provides :- "After decree the Court may, under special circu