The failure to demonstrate 'special circumstances' under Order 37 Rule 4 of the CPC precludes setting aside an ex-parte decree in summary suits.

ORDER :

P.B.BALAJI, J.

The 1^st defendant in a summary suit, filed under Order XXXVII of the Code of Civil Procedure is the revision petitioner.

2.I have heard Mr. Ashok Menon, learned counsel for the revision petitioner and Mr.NGR Prasad for Mr.E.Prabhu, learned counsel for the respondents 1 and 2 and Mr.Anandan, learned Government Advocate for the 3^rd respondent.

3.Mr.Ashok Menon, learned counsel appearing for the revision petitioner would state that the petitioner was arrayed as the 1^st defendant in a summary suit filed in OS.No.4110 of 2024 before the Principal Judge, City Civil Court, Chennai. According to Mr.Ashok Menon, though summons were served on the petitioner, it was his categorical case that the summons along with vakalat were entrusted to a junior advocate attached to a senior on 13.08.2024, with instructions to appear on 14.08.2024, when the suit was listed before the court.

4.Mr.Ashok Menon, learned counsel taking me through the affidavit filed in support of the application to set aside the ex-parte decree would state that the petitioner had specifically brought to the notice of the Court that the junior advocate to whom vakalat had been entrusted had to leave Chennai on medical emergency and he was not in a position to appear on 14.08.2024, which resulted in the ex-parte decree being passed. Mr.Ashok Menon, referring to Order 37 Rule 4 CPC, would state that the petitioner should not suffer for the non-appearance of the advocate, which too, was for genuine reason. In this regard, Mr.Ashok Menon relies on the decision of this Court in UCAL Fuel Systems vs Kintetsu Work Express India Private Limited , reported in 2023 (1) LW 341 .

5.It is also the submission of Mr.Ashok Menon, learned counsel appearing for the petitioner that the petitioner has denied his liability to pay even one rupee to the respondent /plaintiff and further, the application was filed within the 30 days window period available and there was no delay at all. In such circumstances, Mr.Ashok Menon would persuade me to set aside the order of the trial Court and give an opportunity to the petitioner to contest the suit by taking out an application for leave to defend.

6.In fact, Mr.Ashok Menon, learned counsel for the revision petitioner would further state that the petitioner was a tenant under the respondent and the respondent refused to give consent for renewal of license to the petitioner which resulted in the petitioner not being able to run the business for a couple of years and writ petitions were filed by the petitioner, as well as the respondents and in such circumstances, even the claim for arrears of rent for a period, when admittedly the petitioner was not in possession, the premises having been locked by the corporation, would not be maintainable and therefore, substantial triable defense is available to the petitioner.

7.Per contra, Mr.NGR.Prasad, learned counsel appearing for the respondents 1 and 2 would state that under Order 37 Rule 4 CPC, special circumstances would have to be made out, entitling the petitioner to an order of setting aside an ex- parte decree. He would state that the suit has been filed admittedly for arrears of rent and in respect of the petitioner, proceedings were initiated before the Rent Controller and subsequently, the respondent has also come into possession of the property, by due process.

8.The suit, according to Mr.NGR Prasad, is only for recovery of arrears of rent and there is absolutely no triable issue that arises for consideration in the suit. He wou