A SUDHERSHAN Vs. K ASHOK KUMAR

JUDGEMENT

(1.) The revision petitioner is the plaintiff and the respondent is the defendant in the suit being O.S. No.315 of 2004. This revision is filed against an order passed by the learned Ill-Senior Civil Judge, Secunderabad allowing I.A. No. 1597 of 2005 filed in O.S. No.315 of 2004. The application was filed under Order 37 Rule 4 read with Section 151 of the Code of Civil Procedure (for short "CPC") seeking setting aside of the ex parte decree passed on 6-10-2002. A leave was also sought to defend the suit.

(2.) It appears that the plaintiff filed the suit for recovery of a sum of Rs.2,82,500/-. In terms of Order 37 of CPC, the defendant received summons under Form No.4 in Appendix-B on 27-2-2004 and he filed an application for grant of leave to defend the suit. The leave application was withdrawn reserving the right to file such application at appropriate time. The defendant neither appeared nor filed written statement and the suit was decreed in ex parte on 6-10-2005. Thereafter, he filed the present application seeking setting aside of the ex parte decree. The plaintiff opposed the application. He contended that the suit for recovery was filed on the strength of a promissory note executed by the defendant. Even after issuing summons under Form No.4 in Appendix-B and even after making his appearance on 30-4-2004, the defendant did not choose to file his written statement and got his application seeking leave to be withdrawn, however, reserving his right to file the application at appropriate time. The trial Court took into consideration the contention of the defendant that he had never received any amount under the suit promissory note and the note was fabricated and the trial Court came to the conclusion that there was a valuable defence and therefore, it allowed the application. The plaintiff had contended that there should be extraordinary and special circumstances to concede the plea of the defendant to condone the delay beyond 30 days in filing the petition under Order 37 Rule 4 of CPC.

(3.) In these circumstances, this Court will have to see whether such an application under Order 37 Rule 4 of CPC could have been allowed or not. Before that a look at Rules 1, 2 and 3 of Order 37 of CPC is necessary.