Summary suit for recovery

Under Rule 4 of Order XXXVII, Code of Civil Procedure, 1908, ('C.P.C.') "under special circumstances" the court can set aside the decree

Rule 4 is subject to the condition there must be 'special circumstances' to support any application for setting aside decree

Plain reading of Rule 4 makes it diaphanous that it excludes 'ordinary circumstance' or 'circumstances which may happen every day'

Meaning thereby that heavy burden lies on the defendant to show the circumstances due to which he was unable to appear during proceedings of the suit

'special circumstances' are different from 'ordinary circumstance' and 'circumstance which may happen every day', rather the same are rare, exceptional and beyond the control of a human being

Same can be categorized as: 1) Serious illness or accident preventing defendant's appearance; 2) Death or sudden incapacitation of defendant's counsel; 3) Natural calamity or unforeseen events; 4) Mistake or error apparent on the face of the record. 5) Failure of justice due to non-service or inadequate service.

Order XXXVII, R.4, C.P.C., takes out the provision of limitation with the power of the court of setting aside the decree

Said section lays down condition of showing of special circumstances for setting aside the decree

Application is, therefore, to be made under Art.181 of the Limitation Act, 1908, instead of Art. 164 of Limitation Act, 1908.

Order XXXVII, R.4, C.P.C., confers power on the court to set aside the decree under special circumstances and grant defendant leave to appear and defend the suit

Rule 4 applies where the defendant fails to appear and file application for leave to defend

Special circumstances must exist to support any application for setting aside decree

Rule 4 has three separate parts : Opening sentence states that after decree is passed, under special circumstances the court can set it aside; court can exercise the power where special circumstances exist; R.4 excludes ordinary circumstance or circumstances which may happen every day

Heavy burden is laid on the defendant to show the circumstances which had arisen due to which he was unable to appear.

In a summary suit under O. XXXVII, C.P.C., in which summons had been issued, defendant was not entitled to appear or defend suit as a matter of course, unless such defendant obtained leave from the court to appear and defend the suit

In default of such defendant's obtaining of leave from the court, allegations of plaintiff shall be deemed to be admitted and the plaintiff shall be entitled to a decree

Till such time that the leave to defend had been granted, a defendant could not even file any interlocutory application in order to agitate the point of jurisdiction of the court, legal effect of promissory note and crossed-cheques issued by defendant in favour of plaintiff.