1987 Supreme(MP) 685

IN THE HIGH COURT OF MADHYA PRADESH
T.N. Singh, J.
Hariram - Appellant
Vs.
Chaturbbj Singh - Respondent
M.A. No. 173 of 1977 (G)
Decided On : 25-08-1987

Headnote:Civil Procedure Code, 1908 – O.37, R. 4 and 3(5) – leave to defend not applied for previously – reasonable ground of poverty shown under Rule 4 – decree should be set aside and leave to defend be granted.

        Short Note

       This appeal involves a short but substantial point of law. It is rightly contended by Shri Sharma that although special jurisdiction and special procedure is envisaged in Order 37, C.P.C., Rule 4 thereof itself is an important part of the special procedure as indeed is the first provision to Rule 3(5). The Court below, in its impugned judgment, has left no doubt of its non – application of mind to those provisions.

       2. Held: Merely because the defendant defaulted or merely because on that ground the suit filed under Order 37, was decreed, the trial Court does not lose jurisdiction under Rule 4 to consider the case made out thereunder to decide whether it would be "reasonable" for the Court to grant the defendant "leave" to defend the suit. That the provisions of Rule 3 contemplate stringent procedure and summary disposal of a suit instituted under Rule 2 of Order 37, cannot be in doubt. But, the trial Court is equally bound to dispose of the prayer made in terms of Rule 4 and in doing so, it would be required to consider not only defendant's statutory default of not applying for leave in time as per Rule 3(5) but also the fact that he was prevented by a "reasonable" cause from doing so and he could have a "substantial" defence, as contemplated under the afore – quoted provisions.

       3. No prayer for leave to defend was made within summon – time, and none granted, under Rule 3; and judgment was rendered against the defendant. The trial Court forgot that it was its duty also to consider whether "reasonable ground" was made out by defendant in his application for setting aside the decree passed under clause (a) of Rule 3(6). In the instant case, the impugned order amply manifests unmistakbly the fact that the trial Court refused the prayer made under Rule 4 merely relying on the default which the defendant/appellant incurred under Rule 3 without at all considering his "defences" set out belatedly and even the ground set out by him under Rule 4 to see if it was "reasonable".

       4. I have perused the application dated 11 – 7 – 1977 in which defendant – applicant submitted that he was a petty wage – earner and he was, therefore, obviously concerned more with his subsistence and there was some delay on his part for taking steps which was due to compulsion of poverty for engaging counsel for making appropriate prayer for leave to defend within the time allowed as per procedure prescribed. The application was supported by an affidavit and on oath the statement was that he had arrived in the Court premises at around 12.25 p.m. and was having talks with Shri M.P. Sharma, Advocate, for engaging him to defend the suit on his behalf. After ten minutes, at 12.25 p.m., when the case was called out, before his Advocate could take charge of the case on his behalf, an ex – parte decree had already been passed. The facts and circumstances on which the only reasonable view which any Court of law could take was that leave ought to be granted to the defendant to defend the suit after setting aside the ex – parte decree which had been passed under Rule 3 against him. Unfortunately, in this case, a myopic view of fact was taken and it so happened because the vision of the trial Court remained confined to the limits drawn by Rule 3(5); it did not travel beyond that.

       5. For all the foregoing reasons, I have no hesitation at all to quash the impugned order and set aside the ex – parte decree passed, against the defendant – appellant. He is granted leave to defend the suit as prayed and the proceeding would, therefore, commence afresh in the trial Court for decision of the case on merits in accordance with law. Appeal allowed.