Under Order 37 Rule 4, the defendant must establish special circumstances and disclose facts entitling him to defend the case. The defendant's failure to do so may result in the dismissal of the application for setting aside the exparte decree.

M.K. Hanjura, J.

This civil revision is directed against the order dated 13th of September, 2017, of the Court of learned 2nd Additional District Judge, Srinagar, passed in an application filed under Order 37 Rule 4 of the Code of Civil Procedure, for setting aside the exparte decree in case titled 'Bashir Ahmad Wandroo v. Noor Mohammad Rah'.

2. The factual background of the case is that the plaintiff/respondent herein filed a summary suit for the recovery of Rs. 20 lacs alongwith interest in the Court of the learned 2nd Additional District Judge, Srinagar, under Order 37 of the Code of Civil Procedure against the defendant/applicant. The said suit was determined by the learned 2nd Additional District Judge, Srinagar, by a judgment and decree dated 5th of June, 2017 and, accordingly, the defendant/applicant was directed to pay Rs. 20 lacs to the plaintiff alongwith interest @ 9 percent per annum from the date of the institution of the suit till realization of the decretal amount together with the costs of the suit calculated at Rs. 35,000/-.

3. The facts that persuaded the applicant to file this revision are that on the date of the institution of the suit, i.e. the 3rd of May, 2017, summons in form 4 Appendix 'B' were issued to the defendant/applicant in accordance with the mandate of Rule 2 of Order 37 of the Civil Procedure Code for entering his appearance before the Court, within a period of ten days from the date of the service thereof on him, in accordance with Rule 3 Order 37 of the Civil Procedure Code. The defendant/applicant, in pursuance of the said summons, filed an application on 13th of May, 2017, seeking to enter his attendance/appearance in the suit in accordance with the Rule 3 of Order 37 of the Code of Civil Procedure. Thereafter, the plaintiff/respondent herein filed an application buttressed with an affidavit for the service of summons on the defendant/applicant for judgment and, accordingly, summons for judgment in Form 4-A in Appendix 'B' were issued to the defendant/applicant on 18th of May, 2017 and these were served on him on the same day. The defendant/applicant did not file any application for leave to defend the suit within ten days from the service of summons for judgment on him, as enunciated under Order 37 Rule 3 sub-Rule 5 of the Code of Civil Procedure and the learned 2nd Additional District Judge, Srinagar, held that in these circumstances, the plaintiff/respondent herein is entitled to the judgment in terms of Order 37 Rule 3 sub-Rule 6(a) and, as a consequence thereof, the Court directed that the suit of the plaintiff/respondent herein deserves to be decreed in favour of the plaintiff/respondent herein and against the defendant/applicant. The defendant/applicant filed an application before the Court of 2nd Additional District Judge, Srinagar, in terms of Order 37 Rule 4 of the Code of Civil Procedure for setting aside the decree passed against him, inter alia, on the grounds which are reproduced below, verbatim:

i. For the applicant had duly engaged the lawyer, sooner the summons of appearance were issued and on the resumption of summons for judgment the counsel was exhorted to prosecute the matter further while seeking the defence but the drawl of decree by the court suggests that the counsel has not bothered to pursue the matter given the summary nature of the suit which act is largely prejudicial and against the interest of the applicant/defendant.

ii. For the applicant/defendant does not understand the niceties summary nature of the suit and the technicalities embodied therein and now when the exparte decree is drawn by the court, same is telling upon the applicant/defendant for none of his faults.

iii. For the applicant has the substantial defense to plead in the matter, as the many sort to be recovered on the basis of the instrument is already paid to the plaintiff, does rendering the act too dishonest and sham to withstand the test of law. In as much as the plaintiff/non-applicant