IN THE HIGH COURT OF DELHI C.R.P. No.472/2003 # Dr.K.N.Shukla ........ Petitioner ! through: Mr.V.M.Issar, Advocate and Mr.Vishesh Issar, Advocate. VERSUS $ M/s.B.L.A. Chit Fund Ltd. & Ors. ........ Respondents ^ through: Mr.N.Safaya, Advocate. % DATE OF DECISION: 14.01.2008 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Petitioner impleaded as defendant No.1 in a suit filed by the respondent under Order 37 of the Code of Civil Procedure suffered a decree by default. He failed to cause appearance to be entered when summons in the suit were served. Page 1 of 5 2. He filed an application under Order 37 Rule 4 CPC for setting aside the ex-parte decree. The application suffered a dismissal vide impugned order dated 17.1.2003. 3. In the application under Order 37 Rule 4 CPC it was pointed out to the learned Judge i.e. it was pleaded that the suit was filed on 17.7.2000. It was listed on 18.7.2000 when summons were issued returnable for 7.8.2000. That process server reported that he went to the address notified for effecting service of the summons on 4.8.2000 when a lady met him and stated that she was the wife of the petitioner but refused to accept the summons. That treating the same to be a service upon him the learned Court proceeded to hold that since he had not entered appearance within the stipulated period, plaintiff was entitled to a judgment of a deemed admission. 4. Pertaining to the summons sent by registered post it was pleaded that the A.D. card does not bear the signature of any person residing with him. 5. Responding to the application, plaintiff informed the learned Judge that the requirement of Rule 4 of Order 37 i.e. apart from showing special circumstances which prevented him from appearing required facts to be pleaded which would entitle the petitioner to leave to defend. It was stated that Page 2 of 5 none have been pleaded. Thus, plaintiff prayed that the application be dismissed. 6. Learned Trial Judge has dismissed application filed by the petitioner under Order 37 Rule 4 CPC. 7. No doubt, there is good merit in the submission made by learned counsel for the petitioner that the process server could not have recorded refusal even if petitioner's wife declined to accept the summons for the reason law requires attempt to be made to personally serve summons upon the party concerned and when attempts to so serve fail, only then it is permissible to serve an adult member residing with the defendant. But, the petitioner has to cross an additional hurdle. 8. In the decision reported as Rajni Kumar vs. Suresh Kumar Malhotra & Anr., JT 2003 (3) SC 307 in para 10 it was observed as under:- “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 Court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified Page 3 of 5 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 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.” 9. Indeed, an application under Order 37 Rule 4 CPC differs vis-a-vis an application under Order 9 Rule 13 CPC for the reason an application under Order 37 Rule 4 CPC is a composite application determination whereof, if in favour of the applicant, results in not only the ex-parte decree being set aside but leave to defend being granted to the party concerned. It is for this reason law requires that the defendant, in addition to show special circumstances which prevented him/her from appearing, must additionally disclose facts entitling him/her to obtain leave to defend. 10. In the instant case, petitioner has disclosed no such facts which would entitle the petitioner to be granted leave to defend. Page 4 of 5 11. Under the circumstances the petition must fail. 12. Ordered accordingly. 13. The petition is dismissed. January 14, 2008 (PRADEEP NANDRAJOG) bainsla JUDGE Page 5 of 5