RAMESH CHAWLA Vs. RANJIT SINGH

JUDGEMENT

(1.) THIS petition has been directed against the order dated 25. 9. 1997 passed by Sub Judge 1st Class, Chandigarh. By this order, the learned trial Court has framed the issues on application filed by respondent under Order 9 Rule 13 CPC and has adjourned the case for evidence of the applicant. Notice of this petition was issued to the respondent.

(2.) MR . Tangri, the learned counsel appearing on behalf of the petitioner submits that in the present case the respondent has filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree dated 24. 4. 1996 passed under Order 37 CPC. He further submitted that the application under Order 9 Rule 13 CPC was not maintainable as Rule 4 of Order 37 CPc expressly gives power to a court to set aside decree passed under provisions of that Order. He further submitted that under Rule 4 of Order 37 CPC it was necessary for the defendant to show that "special circumstances" existed to set aside the decree whereas under Order 9 Rule 13 CPC, the defendant is not required to show special reason but he has only to satisfy the court that the defendant was prevented by any sufficient cause from appearing when the suit was called for hearing. In support of his submissions, the learned counsel placed reliance on a judgment of the Supreme Court in Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas, A. I. R. 1965 S. C. 1144 and a judgment of Rajasthan High Court in Mohan Lai v. Om Parkash, A. I. R. 1989 Rajasthan 132.

(3.) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. It is not disputed that in the present case the ex parte decree dated 24. 4. 1996 was passed under Order 37 CPC which itself is an independent Code. Rule 4 of Order 37 CPC expressly gives power to a court for setting aside ex parte decree passed under Order 37 CPC. In view of the said provisions of CPC the applicant was required to file the application under Order 37 Rule 4 CPC. The question now arises that simply because wrong proviso of CPC have been mentioned by the applicant in the application, should the application be dismissed on this technical ground? The answer has to be in the negative particularly when both Order 37 Rule 4 CPC and Order 9 Rule 13 CPC provide for procedure for setting aside ex parte decrees. The only difference between the two said provisions of law is that whereas Order 37 Rule 4 provides for procedure with regard to an ex parte decree passed under Order 37 CPC, Order 9 Rule 13 CPC provides for procedure with regard to an ex parte decree passed in an ordinary suit. In view of this, the application filed by the respondent-applicant under Order 9 Rule 13 CPC can be treated as an application filed under Order 37 Rule 4 CPC as the evidence is yet to be led by the parties. In this connection reference may be made to a judgment of the Supreme Court in United Bank of India v. Naresh Kumar, A. I. R. 1997 S. C. 3 wherein it was observed as under: