1. ' The plaintiffs filed a suit against V. C. Khilnani under Order XXXVII, C. P. C. The said defendant filed application under rule 3 for leave to appear and defend the suit but he died on. 22-8-1978. However on 26-8-1978 the application was granted and leave to defend was allowed on furnishing security within three weeks. On 30th October, 1978, the defendants I (I) and (ti) the sons of the deceased defendant filed an application under Order XXII, rule 4, C. P. C. For bringing them on record as defendants, which application was granted on 22-4-1982 by the Additional Registrar and amended plaint was filed on 27-4-1982. Thereafter on 6-5-1982 the defendants filed an application under Order XXXVII, rule 3, C. P. C. For leave to appear and defend the suit. On 16-5-1982 the following order was passed:- "By consent C. M. A. 2025/1982 is granted on furnishing security in the amount claimed in the suit.
2. Mr. Zaidi states that he consented to this order in view of the previous order dated 26-8-1978 passed on the application of the deceased father of the present defendant.
3. ' Security shall be furnished within 30 days from today failing which in view of the provisions of Order XXXVII, C. P. C. The present suit shall stand decreed against the defendant with cost."
4. ' It seems that the defendants were unable to furnish security and on 3-8-1982 they filed an application under section 148, C. P. C. For extention of time for furnishing security, but in view of the order, dated 16-5-1982, as the decree stood passed on 15-6-1982 the application was dismissed.
5. Thereafter on 9-9-1982 the defendants filed an application under Order XXXVII, rule 4 for setting aside the decree. It has been stated in the application that the defendant No. 1 (2) is permanently settled in U. S. A. In April, 1982 defendant No. 1 (1) had gone to U. S. A. For surgical operation on his leg which was severely injured in a road accident in Karachi and came back to Pakistan on 15-7-1982.
6. He has stated that there was no other person in Pakistan to look after his affairs and he was not aware of the order, dated 16-5.1982 as it was passed during his absence. In these circumstances he has prayed that the decree passed against the defendants may be set aside.
7. ' Mr. Munawar Ghani the learned counsel for the defendants has contended that under the provision of Order XXXVII, rule 4 the Court is empowered to set aside the decree and if circumstances require, may even give permission to appear and defend the suit. Mr. Zaidi has contended that under this rule only that decree can be set aside which has been passed on defendant's failure to appear in response to the summons served on him. According to the learned counsel once a defendant appears, applies for leave to defend the suit, the leave is granted conditionally and such condition not having been fulfilled the decree is passed, the defendant cannot apply Order XXXVII, rule 4 for setting aside such decree. In this regard reference is made to Mrs. Rama Ben Bhagoo Mai Patel v. Hindustan Electric Co. Ltd. (1) where it was held that where the decree has been passed under Order XXXVII, rule 2, sub-clause (ii) for failure of defendant to comply with the terms of conditional order to defend the suit, Order XXXVIL rule 4 will not apply.
8. However, this judgment was overruled in Ramchandra v. Vithaldas (2).
9. ' The important question which arises is whether under Order XXXVII, rule 4 the power of the Court to set aside a decree is limited to a ease in which the defendant has failed to appear in answer to the summons for judgment or in those cases also where decree has been passed on defendant's failure {{FOOT NOTE}}
(1) AIR 1963.Bom. 85 (2) AIR 1964 Bona. 251 {{FOOT NOTE}} ' to fulfil the conditions laid down by the order granting leave to defend the suit. Order XXXVII is a self-contained provision which provides for special summary procedure for suits on bills of exchange, Hundis or promissory notes. This procedure is intended to decide cases of such nature in a summary and expeditious manner. After service of summons defendant is entitled to appear and defend the suit only if a permission is granted to that effect. Such permission is granted only if the defendant is able to make out a plausible or arguable case. The leave may be conditional or unconditional. Therefore in a case where leave has been granted on certain conditions and defendant does not fulfil the conditions the leave granted to him will not be operative. In such circumstance, as well as where the defendant does not appear and apply for leave to defend, the Court is empowered to decree the suit taking the averments made in the plaint to be admitted.
10. This procedure as laid down in rules 2 and 3 is followed by rule 4 which reads as follows :- "4. Power to set aside decree.-After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give 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."
11. This procedure is available where decree has been passed which can be in no other manner except as stated above. Therefore, the 'decree' in rule 4 refers to decree in a suit filed under Order XXXVII which may have been passed due to the defendant's failure to appear and seek leave to defend or non-compliance with the conditional order passed in favour of the defendant granting leave to defend the suit. If the contention of the learned counsel B for the plaintiff is accepted then the operation of rule 4 will be restricted only to such decrees are passed in cases where the defendant fails to appear and seek leave to defend the suit. This cannot be the intention of the Legislature in the absence of any express word to that effect. The learned counsel for the plaintiff has contended that words "and may give leave to defend" contemplate only a decre passed in a suit in which leave has not been granted. According to him these words restrict the applicability to cases where the defendant has failed to appear to the summons. The meaning attributed by the learned counsel for the plaintiff is limited and restricted. The real meaning has to be ascertained by looking into the words of the Statute and the intention of the Legislature. The provisions of Code of Civil Procedure are intended to foster justice and to avoid ex parte judgments as far as possible.
12. Order XXXVII is a special, summary and self-contained pro vision and any decree passed ex parte or without hearing the defendant under it cannot be set aside under Order IX, rule 13, C. P. C.
13. Therefore, the entire mechanism and procedure has to be looked within the four corners of Orde XXXVII. Considering from this point of view, in my opinion, Order XXXVII, rule 4 should be given wide meaning which provides for setting aside decree of any nature passed under Order XXXVII except on merits. The words "may give leave to defend to appear to the summons and to defend the suit" will not restrict the scope of Order XXXVII, rule 4, C. P. C. In fact Order XXXVII, rule 4 vests the Court with powers of wide nature which have been distinctly and disjunctively enumerated in it. Rule 4 can be divided into three separate independent parts. The opening sentence states that after the decree is passed, under special circumstances, the Court can set it aside. This vests a general power in Court to set aside the decree. The only embargo I D that it can be exercised in special circumstances. Thereafter if necessary the Court can stay or set aside the execution and lastly if reasonable give leave t appear to the summons and defend the suit.
14. ' In the case of Ramchandra 'v. Vithaldas similar question arose for consideration, and while overruling AIR 1963 Bom. 85 the following observation was made:- "Rule 4 must apply to a suit as has resulted into a decree under the summary procedure and it enables the Court to set aside 'the decree' which must mean 'the decree' made under rule 2. Rule 2 contemplates two circumstances under which a decree can be made one, where the defendant fails to obtain leave to defend and second, where having obtained such leave, he does not appear and defend the suit in pursuance of the leave. On satisfaction of either of these conditions, the consequences provided by sub-rule (2) of rule 2 must follow and result into a decree. The words are 'after decree the court may' in rule 4; they must mean after such decree as is made under rule
2. The word 'decree' is applicable to a decree obtained in either eventuality and in the absence of anything else either kind of decree can be set aside by the Court if conditions laid down in the rule are satisfied."
15. The proceedings under Order XXXVII are summary in nature placing restrictions on the defendant's right to defend the suit. In such circumstances it will be proper and just to afford an opportunity to a defaulting defendant in special circumstances to seek remedy at the same forum. While applying it to all such decrees the Legislature has taken care to restrict the grounds for setting aside the decree.
16. ' Now the question arises in which circumstances the decree can be set aside. This can be done only in "special circumstances" which have not been defined. However, the words "special circumstances" will restrict to a great extent the applicability of rule 4. In this regard reference can be made to the provisions of Order IX, rules 7, 9 and 13 which provide for setting aside the ex parte order/decree. Under Order IX, rule 7 if a defendant appears and assigns "good cause" for his previous non-appearance he may be permitted to appear. Under rule 9 ex parte order of dismissal of plaint can be set aside on "sufficient cause" being shown for non-appearance. Under rule 13 again the same words "sufficient cause", have been used for setting aside an ex parte decree.
17. Urder Order XXXVII neither of these words have been used. The words used are "special circumstances" which seem to be different from "sufficient"or "good cause" and are comparatively narrower in their applicability. Special circumstances exclude ordinary circumstances or circumstances which may happen every day. They indicate such circumstances which may be rare, exceptional and are not of common occurrence. Therefore, heavy burden F is cast on the defendant to show that circumstances had arisen which besides being good cause or sufficient cause were of special nature due to which he was unable to appear or fulfil the condition laid down in the order. Putting the defendant's case to test as required by rule 4, I find that no special circumstance has been made out. The reason given is that before the order was passed the defendant had left for U.S.A. For medical treatment and returned back in July. The defendant was aware of the proceedings against him, he had appointed an Advocate for defending the suit, and the order was passed with the consent of both the Advocates. It was the duty of the defendant that he should have kept his Advocate informed of his address so that he G could be communicated of the result of the proceedings. No such steps were taken and nothing has been shown on the record that the injury of the defendant No 1 was of such a nature that he had completely remaiued unconscious throughout and was not able to communicate to anyone. It seems that the defendant had been in full senses and was able to give proper instructions even to his doctor, This is not a case that he was in coma throughout or in such mental imbalance which prevented him from giving instructions to his Advocate. The other aspect of the case is that the other defendant has not even filed such an application. Further, the order sought to be set aside is a consent order and in the circumstances stated above it cannot be set aside without the consent of the other side. The application is dismissed.