MADHUR GARMENTS Vs. HASMUKH SHOPPING CENTRE

JUDGEMENT

(1.) By this revision application under Sec. 115 of the C.P.C., the petitioner challenges the order dated 28-2-1997 of the City Civil Court No. 18. Ahmedabad passed below Ex. 1. Restoration Application No. 792 of 1995. Under this order, the learned trial Court set aside the judgment and decree dated 22-9-1994 passed in Summary Suit No. 2610 of 1993 and the suit is ordered to be restored to the file. The respondents were directed to file a written statement within 10 days from the date of the order. It is not in dispute that in pursuance of the order of the trial Court, the respondents have already filed written statement in the suit.

(2.) The facts of the case, in brief are that the original plaintiff-petitioner filed Summary Suit No. 2610 of 1993 against the defendant-respondent for the recovery of Rs. 52,974.00. The defendants-respondents filed their appearance through their Advocate and furnished solvent security of Rs. 55,000.00 as per the order of the Court. Thereafter, the plaintiff-petitioner has taken out summons for judgment on 24-6-1992. The matter was kept for hearing on 7-7-1994. On which date, the learned Advocate for the defendants-respondents sought time for filing the application for leave to defend and the matter kept on 22-9-1994. On the said date the learned Advocate for the defendants-respondents did not remain present in the Court and hence the Court passed ex-purle decree for Rs. 51.793.00. The plaintiff-petitioner thereafter filed Precept Application under Sec. 46 of the C.P.C. before the trial Court on 10-4-1995. The Court has issued precept of Rs. 75.000.00 on 20-3-1995. It is the case of the defendants-respondents that the plaintiff-petitioner has got attached goods from their shop that worth Rs. 5,91,000.00 though the order for precept was only for Rs. 75.000.00. The defendants-respondents filed an application for setting aside of the ex-pane decree passed in the suit. That application resisted by the plaintiffpetitioner and under the impugned order the said application has been granted by Court below. Hence this revision application.

(3.) The learned Counsel for the plaintiff-applicant contended that the defendants- respondents have the notice of the suit and they put the appearance in the suit through Advocate but neither they present nor their Advocate was present though an application for leave to defend has been filed. The learned trial Court has no other option but to decree the suit ex-parfe. It is what the learned Counsel for the petitioner contended that technically it cannot be said to be an ex-parte decree. It is next contended that under Rule 4 of Order 37 of the C.P.C., the Court under special circumstances may set aside the decree and may grant leave to the defendant to appear to the summons and to defend the suit if it seems reasonable to the Court so to do and on such terms as the Court thinks fit. The learned Counsel for the plaintiff-petitioner contended that the defendants-respondents failed to give any special circumstances before the Court below justifies setting aside of the decree and leave to the defendants-respondents to appear to the summons and to defend the suit.