BISUNDAS MANIKPURI Vs. MANGALDAS

JUDGEMENT

(1.) THIS is a defendant's revision against the order dated 4.10.1993, passed in MJC No.2 -B/90 by First Additional District Judge, Durg.

(2.) FACTS giving rise to this revision are thus : - The non -applicant instituted a suit under Order 37 CPC for recovery of a sum of Rs.37,000/ - against the applicant. The applicant after the service of summons applied within ten days under Order 37 Rule 3(5) by affidavit to grant leave to defend. The applicant averred that he is a labourer who took loan of Rs. 7000/ from the non -applicant but it could not be paid by him. However, the non -applicant/plaintiff interpolated the bond by adding numerical figure of "3" before "7" so as to make the amount of loan as of Rs. 37,000/ -. Similarly, the words were also interpolated in the writing so as to show that the applicant had taken Rs. 37,000/ - and not Rs. 7000/ -. The trial Court granted leave to defend conditionally on deposit of Rs. 7000/ - in accordance with the second proviso to sub -rule (5) of Rule 3 of Order 37. The applicant could not deposit the said amount of Rs. 7000/ - within time fixed and made an application that he be permitted to furnish bank guarantee instead of deposit 'of cash amount. The said application was not pursued hence was dismissed. On failure of deposit of Rs. 7000/ - and after hearing the non -applicant an ex -parte judgment under Order 37, Rule 3(6)(b) CPC was passed in favour of the non -applicant. When the decree was put in execution, the applicant raised objections against the excitability of the decree on various grounds. The objections so raised were rejected by the order dated 25.9.90 passed in' MJ.C. No. 24/90. Aggrieved of the said order the applicant preferred a Civil Revision No. 533 of 1990 before this Court which was dismissed on 9.3.1992 with observation that if the right of the applicant to apply under Order, 37, Rule 4 CPC survives, the applicant, if so advised, may move the Court below under Order 37, Rule 4 CPC or under any other provisions of law. If such an application is made, that shall be decided by the Court below in accordance with law. After the order of this Court, the applicant filed an application under Order 37, Rule 4 read with Section 151 CPC before the Trial Court on 1.5.1992. The non -applicant after notice contested the said application. The trial Court after enquiry held that the application is not maintainable as the applicant earlier applied for leave to furnish bank guarantee instead of deposit the admitted amount in cash, and as no 'special circumstances' for setting aside the ex -parte decree were found the trial Court dismissed the application.

(3.) SHRI A.S. Jha, learned counsel for the non -applicant submitted that the application under Rule 4 of Order 37 was not maintainable. The applicant was not vigilant. He was granted leave to defend conditionally but he failed to deposit the admitted amount of Rs. 7000/ -. Then he filed the application for furnishing bank guarantee. That application was also not pursued which was dismissed. Against that order the applicant filed revision which was dismissed as not maintainable. Then, the applicant filed an application under Order 37 Rule 4 CPC. The trial Court also dismissed that application. The trial Court rightly held that the application of the applicant was not maintainable. On facts too the trial Court after holding an enquiry held that no 'special circumstance' has been established as envisaged by rule 4 of Order 37, therefore, rightly dismissed the application. Counsel cited the decision of Jammu and Kashmir High Court in Subhash Raina' s case (supra) and a decision of Rajasthan High Court in case of Mohan Lal v. Om prakash (AIR 1989 Raj. 132)