IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2011 CORAM: THE HONOURABLE MR. JUSTICE K.MOHAN RAM Civil Revision Petition (NPD) Nos.422 to 424, 444 to 446 and 484 and 485 of 2008 ---
M/s.Chandan Apparals
rep. by its Proprietrix
D.Chandan. .. Petitioner in all the petitions.
vs.
Nihal.P.Hemdev .. Respondent in CRP(NPD) 422/2008 Giridhar.P.Hemdev .. Respondent in CRP(NPD) 423/2008 Kailash.P.Hemdev .. Respondent in CRP(NPD) 424/2008 M/s.Goyal & Co. Rep. by its Proprietor Sunil Goyal .. Respondent in CRP(NPD) 444/2008 Vivek.P.Hemdev .. Respondent in CRP(NPD) 445/2008 Avinash.K.Hemdev .. Respondent in CRP(NPD) 446/2008 Mohini Amarlal .. Respondent in CRP(NPD) 484/2008 Suresh.P.Hemdev .. Respondent in CRP(NPD) 485/2008
Civil Revision Petitions filed under Section 115 of the Civil Procedure Code, against the order and decree dated 05.10.2007 passed in I.A.Nos.11700, 11697, 11703, 11688, 11691, 11711, 11694 and 11706 of 2007 in O.S.Nos.723, 725, 722, 719, 726, 721, 724 and 720 of 2006 on the file of the IV Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr.M.Arvind Kumar
For Respondents : Mr.M.Santhanarajan
—
COMMON ORDER
In all the above Civil Revision Petitions, the defendant in O.S.Nos.723, 725, 722, 719, 726, 721, 724 and 720 of 2006 on the file of the learned IV Judge, City Civil Court, Chennai, is the petitioner herein.
2. The respondents herein filed the aforesaid suits against the petitioner for recovery of various amounts due under various promissory notes said to have been executed by the defendant in respect of the amounts borrowed by the defendant from the plaintiffs.
3. When the aforesaid suits were posted for hearing on 23.03.2006, as the defendant/petitioner herein failed to appear before the Court below, the defendant was set ex-parte in all the suits and ex-parte decrees have been passed. Thereafter, execution petitions have been filed to execute the ex-parte decrees and all the decrees were transmitted to the City Civil Court, Bangalore, as the petitioner is residing within the jurisdiction of the City Civil Court, Bangalore.
4. On transmission, the execution petitions were re-numbered and attachment of immovable properties of the petitioner herein were ordered. At that stage, the petitioner has filed the aforesaid petitions to condone the delay of 270 days in filing the petitions to set aside the ex-parte decrees dated 23.03.2006, and has also filed the petitions to set aside the ex-parte decrees and to stay all further proceedings in the execution petitions pending before the City Civil Court, Bangalore.
5. In all the identical affidavits filed in support of the aforesaid petitions, the petitioner has stated that she had not received any notice/summons in all the suits; in the first week of April 2007, she was shocked to receive notices in the execution petitions from the City Civil Court, Bangalore for the hearing date 04.04.2007; only after her counsel verified the records, she came to know about the ex-parte decrees passed in the suits; thereafter, she was bed ridden due to illness and hence there was some delay in handing over the copy of the notices in the execution petitions to the counsel at Chennai and she handed over the notices in the last week of May, 2007, to ascertain the details about the suits; after verification of the records, she came to know about the filing of the aforesaid suits by the respondents and about her non-appearance and being set ex-parte and passing of the ex-parte decrees; and thereafter, the aforesaid petitions have been filed.
6. According to the petitioner, no amount is due and payable by her to the respondents in any manner. It is further stated that it is not known on what basis the respondents filed the above suits, that the entire transactions between the petitioner and the respondents had been closed several years back, that there is no amount due and payable by her to the respondents either towards principal or interest and that the amounts due were duly discharged long back.
7. It was further contended in the affidavits that the address for service in the suits on the petitioner had been shown as No.10/1, First Cross, Obalappa Gardens, New Mission Road, Bangalore 560027, which she had vacated in the year 2004 itself, but for the reasons best known to the respondents, a wrong address was furnished to snatch an ex-parte decree, due to which, she has not been served with any notice or summons in the above suits.
8. It is further stated that if she had received notice/summons in the suits, she would have certainly appeared and contested all the above suits on merits and that the delay of 270 days is sought to be explained as aforesaid.
9. The respondents herein filed separate counter affidavits denying the aforesaid averments made in the affidavits of the petitioner. The averment that the petitioner had vacated from No.10/1, First Cross, Obalappa Gardens, New Mission Road, Bangalore 560027, has been specifically denied and it has been specifically stated in the counter affidavit that the petitioner herein was duly served with the notices sent through Court and privately and the affidavits of service have also been filed before the Court below and only on satisfaction about the proper service on the petitioner, the petitioner was set ex parte on her failure to appear before the Court.
10. It is further stated that in the execution proceedings, the petitioner has made partial payment towards ex-parte decrees and that the execution petitions have been adjourned for payment of the remaining amount. It is further stated that the delay of 270 days has not been properly explained.
11. The Court below, after considering the aforesaid rival contentions, has dismissed all the petitions and being aggrieved by that, the petitioner is before this Court.
12. Heard Mr.M.Arvind Kumar, learned counsel appearing for the petitioner and Mr.M.Shantanarajan, learned counsel appearing for the respondents.
13. Mr.Arvind Kumar, learned counsel appearing for the petitioner, submitted that the Court below has not properly considered the explanation of the petitioner to condone the delay of 270 days in seeking to set aside the ex-parte decree dated 23.3.2006. The finding of the Court below that summons in the suits have been served on the petitioner, is not correct, since the petitioner had vacated the said premises even in the year 2004. The learned counsel further submitted that the respondent has furnished a wrong address in the plaint to snatch an ex-parte decree. The learned counsel also submitted that the observation made by the Court below that by making part payment in the execution petitions, the petitioner had admitted her liability is erroneous. The learned counsel further submitted that there was no liability on the part of the petitioner and the entire amounts borrowed by her had been discharged. The learned counsel submitted that the delay ought to have been condoned at least on terms, so that an opportunity would be available to the petitioner to contest the aforesaid suits on merits.
14. Countering the said submissions, Mr.M.Santharajan, learned counsel appearing for the respondents, submitted that a perusal of the judgments rendered in the suits shows that summons have been served on the petitioner in all the suits and in spite of the service of summons, the petitioner failed to appear before the trial Court and that was the reason why the petitioner was set ex-parte. Further, if the summons sent through Court and the private notice sent by the plaintiffs had not been served on the petitioner, the Court below would not have set the defendant ex-parte. But, suppressing the service of summons sent through Court and the private notice sent by the plaintiffs, the petitioner has filed affidavits as if she came to know about the passing of the ex-parte decrees only after the receipt of the notice in the execution petitions from the City Civil Court, Bangalore.
15. The learned counsel contended that even in the execution petitions, the address given in the plaint alone has been furnished and the notice sent in the execution petitions has been served on the petitioner on that address and therefore submitted that the contention of the petitioner that she vacated the said premises even in the year 2004, is not correct.
16. The learned counsel further submitted that under Order 37 Rule 4 of Civil Procedure Code, the Court is empowered to set aside the ex-parte decree only under special circumstances and to grant leave to the defendant to defend the suit if it seems reasonable to the Court so to do. But, the petitioner had not stated in the affidavit about the special circumstances warranting setting aside of the ex-parte decree. The learned counsel further submitted that in the affidavit itself the petitioner ought to have stated the defences open to the petitioner and why the petitioner is entitled to be granted leave to defend the suit.
17. According to the learned counsel, the petitioner had not established by acceptable evidence that there exists any special circumstance warranting setting aside of the ex-parte decrees and the petitioner had also not set out the defences open to her, so that she is entitled to be granted the leave to defend the suit and therefore, the Court below is right in declining to condone the delay of 270 days in seeking to set aside the ex-parte decree. The learned counsel further submitted that the petitioner has not approached the Court with clean hands, since the service of summons through Court as well as privately has been suppressed.
18. In support of the said contention, the learned counsel for the respondent places reliance on the decision of the Apex Court in Rajni Kumar v. Suresh Kumar Malhotra (AIR 2003 Supreme Court 1322). In the said decision, the Supreme Court held as follows:
10. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.
11. Now adverting to the facts of this case, though the appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.
12. In this view of the matter, we do not find any illegality much less jurisdictional error in the order under challenge to warrant interference of this Court. …..”
19. I have considered the aforesaid submissions made on either side and perused the materials available on record.
20. The main thrust or contention of the learned counsel for the petitioner is that the petitioner came to know about the passing of the ex-parte decree in all the suits only after receiving notice in the execution petitions from the City Civil Court, Bangalore and after verification of the records in the suits by her counsel at Chennai. The other contention is that the petitioner had not been served with any notice/summons in the suits, as she had already vacated from the premises No.10/1, First Cross, Obalappa Gardens, New Mission Road, Bangalore 560027.
21. A perusal of the judgments and ex-parte decrees passed in the suits by the City Civil Court, Chennai, would show that the petitioner had been served through Court and privately. Thus, it is clear that the service of notice in the suits has been suppressed in the affidavit. One another contention raised by the learned counsel for the petitioner is that in the execution petitions, the petitioner was not served in the address mentioned in the plaint. But, a perusal of the execution petitions shows that even in the said petitions, the very same address as has been mentioned in the plaint is given and notice has been served only at that address. When this was pointed out to the learned counsel for the petitioner, the learned counsel submitted that notice would have been addressed to the earlier address, but it would have been received by somebody else and the same would have been re-directed to the present address. But, to accept the said submission, there is absolutely no material produced by the petitioner. Hence, the said contention cannot be countenanced.
22. If the facts in the case are considered in the light of the law down by the Apex Court in the decision relied upon by the respondent, it could be seen that the petitioner had not made out any special circumstance, which prevented her from appearing or applying for leave to defend. As rightly pointed out by the learned counsel for the respondent, the petitioner has also failed to show by affidavit or otherwise, the facts, which would entitle the petitioner for leave to defend the suit. As pointed out by the Apex Court, Rule 4 of Order 37 is different from Rule 13 of Order 9 of Civil Procedure Code. Even assuming without admitting that the petitioner had shown sufficient cause for her absence to appear before the Court to avoid ex-parte decree, as the petitioner had failed to disclose the facts, which would entitle her to defend the case, the delay could not be condoned. Though the petitioner had stated in the affidavit that the entire amount due in respect of the transactions between the petitioner and the respondent had already been paid, the details of the payments have not been set out in the affidavit and it has not been stated that payments said to have been made by the petitioner are evidenced by any receipt issued by the respondents.
23. As per the aforesaid decision of the Apex Court, where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. The said procedure has not been followed by the petitioner in these cases. Hence, the contention of the learned counsel for the petitioner cannot be countenanced.
24. A perusal of the impugned order shows that the Court below has considered the contentions put forth by the petitioner. I do not find any illegality, much less jurisdictional error in the orders passed by the Court below. Hence, this Court is not inclined to interfere with the orders passed by the Court below. Therefore, these Civil Revision Petitions fail and the same are dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
ATR
To
1. The Registrar
Court of Small Causes
Madras.
2. The Record Keeper
V.R. Section
High Court,
Madras