ANIL HADA Vs. PRAVIN KUMAR AGARWAL

JUDGEMENT

(1.) THE order impugned is the order dated 07.9.2005 vide which two applications filed by the defendant; one under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as "the Code) and the second application under Order 9 Rule 13 of the Code had been dismissed.

(2.) RECORD shows that the present suit had been filed by the plaintiff under Order XXXVII of the Code of the Code. This suit was based on a written document which was an acknowledgement purported to have been executed on 09.8.1997 by the defendant in his favour. After the service of the defendant memo of appearance had been put in by the defendant; defendant had entered his appearance within the stipulated period. The suit was originally filed in the High Court; after the enhancement of the pecuniary jurisdiction of the Civil Courts the matter had been transferred from the High Court to the District Court; this was vide order dated 10.9.2003. On 17.12.2003 the application filed by the plaintiff seeking substituted service on the defendant in view of his submission that the summons for judgment could not be served upon the defendant had been allowed. The summons for judgment were directed to be served upon the defendant by publication in the ,,Indian Express as also by affixation at his last known address which was returnable for 19.01.2004. On 19.01.2004 it had been recorded that the summons for judgment had been served by way of publication in the ,,Indian Express on 09.1.2004 as also by affixation on 15.01.2004. This factual position is not in dispute. On 30.01.2004 the court had noted that since the prescribed period for filing an application for leave to defend had expired and no leave to defend having been filed, the plaintiff has become entitled to a decree; the matter had however been adjourned to 04.2.2004 on which date the arguments were heard and the matter was reserved for judgment. On 09.2.2004 the suit of the plaintiff was decreed.

(3.) THESE arguments have been rebutted by the learned counsel for the respondent. Reliance has been placed upon (2003) 5 SCC 315 Rajni Kumar Vs. Suresh Kumar Malhotra and Anr. to support his submission that "special circumstances" as appearing under Order XXXVII Rule 4 of the Code are different in connotation from "sufficient cause" as appearing under Order IX Rule 13 of the Code; not only has the defendant to show sufficient ground for not appearing or filing his application for leave to defend in time; he must also in addition show that all these facts which could hold him entitled to defend the suit.