SHAZ ENTERPRISE Vs. TITAN INDUSTRIES LIMITED

JUDGEMENT

(1.) The present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India as well as under the provisions of the Civil Procedure Code for the prayer that appropriate writ, order or direction may be issued quashing and setting aside the impugned order passed below application. Exh.25 in Civil Misc. Application No. 355 of 2011 by Learned Judge, City Civil Court, Ahmedabad dated 23.06.2011 and also for the interim direction for arrangement of bank guarantee on the grounds set out in the memo of petition referring to the provisions of Order 37, Rule 4 of the Civil Procedure Code as well as on the aspect of limitation inter alia contending that the impugned order is contrary to the material and evidence on record and statutory legal position as contained in Civil Procedure Code, 1908 as well as Limitation Act and Ahmedabad City Civil Court Rules, 1961 .

(2.) Learned counsel, Mr. B.R. Gupta referred to the impugned order at length as well as the facts of the case and submitted that the respondent had taken the shop on lease on the basis of leave and licence for its showroom and, thereafter, initially they have made the payment but after two years, they stopped making payments towards the amount of lease or rent and they did not vacate the premises also. Therefore, the aforesaid Summary Suit No. 151/2011 was filed for the recovery of sum of Rs. 17,83,293/- towards the agreed license fees, amenity charges, service tax etc. Learned counsel, Mr. Gupta submitted mat legal notices were addressed, which are placed on record and as they have failed and neglected the aforesaid Suit was filed to recover the dues/outstanding amount of license fees etc. as referred to in the leave and license agreement. However, when the said Suit was decreed and ex parte decree was passed, the respondent-original defendant filed Civil Misc. Application No. 355 of 2011 under Order 37, Rule 4 read with Section 151 of the Civil Procedure Code, which is produced at Annexure-D and contended that when the ex parte decree was passed, summon of the Summary Suit No. 151 of 2011 was not served upon them and without serving notice or summons at Banglore Office, they cleverly made the regional office at Mumbai as party defendant and obtained the ex-parte decree. It is contended that Mumbai office has in no way concerned with the transaction and legal office is at Banglore, which could be transpired from the agreement and other papers. It is also contended that the plaintiff-opponent in the said application (the petitioner herein) had knowledge about the office having at Banglore and still he had served the summons or notice at Mumbai office. Therefore, there is talks about the settlement between the parties and on the other hand, they have filed the Suit not making Banglore office as party, which itself would suggest the oblique motive and, therefore, they had applied for setting aside the ex parte decree. After hearing both sides, learned Judge, City Civil Court, Ahmedabad by impugned order dated 23.06.2011 allowed the application filed by the applicant-original defendant setting aside the ex parte decree passed by the Chamber Judge in Summary Suit No. 151 of 2011, which is challenged by way of present petition.

(3.) Learned counsel, Mr. Gupta submitted that the Learned City Civil Court has failed to appreciate the provisions of law like Order 37, Rule 4 of the Civil Procedure Code in as much as what is required to be considered is whether the ground i.e. special circumstance for setting aside such decree is made out or not, which has not been appreciated. Learned counsel, Mr. Gupta submitted that no special circumstance can be said to have been made out. Learned counsel, Mr. Gupta submitted that for the purpose of exercising the power under Order 37, Rule 4 of the Civil Procedure Code, the Court has failed to appreciate that there has to be a special circumstances which in this case is not made out. .