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HIGH COURT OF JAMMU AND KASHMIR
NISAR AHMAD RATHER – Appellant
Versus
TAJAMUL AHMAD RESHI – Respondent
JUDGMENT :
1. The petitioner has challenged order dated 15.06.2024 passed by learned 4th Additional District Judge, Srinagar, whereby his application for setting aside of judgment and decree dated 29.04.2023 has been dismissed. Challenge has also been thrown to the judgment and decree dated 29.04.2023 passed by learned 4th Additional District Judge, Srinagar.
2. Issue notice to the respondent. Mr. Shahid Zameer, Advocate who is on caveat accepts notice on behalf of the respondent.
3. Heard learned counsel for the parties and perused the record of the case.
4. It appears that the respondent had filed a suit under Order 37 of CPC, seeking recovery of an amount of Rs.35,00,000/- (rupees thirty five lacs) from the petitioner before the Court of learned 4th Additional District Judge, Srinagar (hereafter referred to as ‘the trial court’). It seems that pursuant to the service of summons upon the petitioner/defendant, he appeared before the learned trial court on 19.12.2022 and his counsel sought time to file Vakalatnama. On the next date of hearing, i.e on 24.01.2023 again the petitioner/defendant put in his appearance before the trial court and his counsel sought time to file Vakalatnama. O
The court ruled that failure to serve summons for judgment invalidates an ex parte judgment, emphasizing the mandatory nature of procedural requirements under Order 37 of the CPC.
Setting aside of ex parte judgment and decree – Defendant is obliged to apply for leave to defend only after he has been served with summons for judgment.
A defendant's application for leave to defend must be considered on its merits and cannot be dismissed for non-prosecution.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
An ex-parte decree can be set aside if a defendant proves that proper service of summons was not conducted, emphasizing adherence to procedural due process over substantive merit during initial heari....
The failure to demonstrate 'special circumstances' under Order 37 Rule 4 of the CPC precludes setting aside an ex-parte decree in summary suits.
The court upheld the dismissal of the petitioner's application to set aside an ex parte decree, finding no sufficient cause for his absence during proceedings.
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