IMPORTANT POINT
The court ruled that a defendant's failure to comply with conditions of leave under Order XXXVII Rule 4 justifies the decree, and the application to set aside the decree was not competent as it was not ex parte.

JUDGMENT :

J.J. Munir, J.

1. This revision is directed against an order passed by the learned Civil Judge (Sr. Div.), F.T.C., Prayagraj dated 27. 09.2023 in Misc. Case No.11 of 2018, rejecting the defendant's application under Order XXXVI Rule 4 of the Code of Civil Procedure, 1908 (for short, 'the Code'), to set aside the decree under special circumstances.

2. The facts giving rise to this revision are these:

Sam Higginbottom Institute of Agriculture, Technology and Sciences, Naini, Allahabad (formerly the Allahabad Agricultural Institute Deemed University) awarded a works contract for some construction work to be done on their premises to M/s. Acurite Contractors & Engineers, Banjara Hills, Hyderabad, a partnership firm. The former shall hereinafter be called 'the defendant' and the latter 'the plaintiff'. For the purpose of giving effect to their covenants carried in the works contract, the plaintiff and the defendant signed a memorandum of understanding dated 19.12.2006, where both parties agreed that the total value of the work, to be executed under the contract by the plaintiff, would be Rs.26,32,72,391/-. It was also covenanted that after deducting the moneys already paid to the plaintiff in liquidation of the running bills, balance would be paid by the defendant to the plaintiff in three equal installments. Original Suit No.1014 of 2012 was instituted by the plaintiff against the defendant with a case that after deducting the money paid by the defendant, the defendant was obliged, according to the terms settled under the memorandum of understanding dated 19.12.2006, to pay the plaintiff the balance of a sum of Rs.4,96,00,751/-, besides interest at the rate of 12% per annum w.e.f. 19.08.2009, which the defendant did not. The defendant, in answer to the summons for appearance, entered appearance, and, later on, in answer to the summons for judgment, applied for leave to defend. The Trial Judge by his order dated 25.07.2013 granted unconditional leave. A written statement was filed by the defendant in compliance with the said order. The order of the Trial Court dated 25.07.2013, granting unconditional leave to defendant, was impugned by the plaintiff vide Civil Revision No.380 of 2013, preferred to this Court. The said revision was allowed in part vide judgment and order dated 23.09.2014, modifying the leave and making it conditional upon: (a) deposit of 50% of the total sum of money claimed by the plaintiff, in cash; and, (b) furnishing adequate security for the balance to the satisfaction of the Trial Court, all to be done by the judgment debtor within six weeks from the date of the order made by this Court.

3. This order was challenged by the defendant preferring a petition for special leave to appeal to the Supreme Court. The special leave petition was dismissed by their Lordships vide order dated 15.12.2014. The time to deposit 50% of the total sum of money claimed by the plaintiff was extended by two weeks from the date of the order passed by the Supreme Court. While the special leave petition was pending before the Supreme Court, an application was made on 10.11.2014 by the defendant before the Trial Judge, praying that the defendant be granted opportunity to cross-examine the plaintiff's witnesses and liberty to address the Court on legal issues. This application was rejected by the order dated 10.11.2014 passed by the Trial Judge. The said order was challenged by means of Civil Revision No.14 of 2015 carried before this Court. This Court by judgment and order dated 11.07.2016 allowed the revision in part, by which the sole relief that was granted was that the application made to the Trial Court stands allowed to the extent that the defendant would have liberty to raise a question about the jurisdiction of the Court to try the suit as one under Order XXXVII of the Code “by pointing out non-applicability of Order XXXVII of the Code to the suit of the nature instituted against the defendant. But, while doing so, the def