Case Note & Summary
The revision petitioner, R. Ettiraj, was the 1st defendant in a summary suit (O.S. No. 4110 of 2024) filed by the respondents P. Kubendiran and M.K. Kanmani before the Principal Judge, City Civil Court, Chennai, for recovery of arrears of rent. The suit was filed under Order XXXVII of the Code of Civil Procedure, 1908 (CPC). Summons were served on the petitioner, who entrusted the vakalat to a junior advocate attached to a senior advocate on 13.08.2024 with instructions to appear on 14.08.2024. However, the junior advocate had to leave Chennai due to a medical emergency and could not appear, resulting in an ex-parte decree being passed against the petitioner. The petitioner filed an application under Order 37 Rule 4 CPC to set aside the ex-parte decree, which was dismissed by the trial court on 10.10.2025. Aggrieved, the petitioner filed the present civil revision petition under Section 115 CPC. The petitioner argued that the non-appearance was due to the advocate's medical emergency, which constituted a special circumstance under Order 37 Rule 4, and that he had a triable defense as he was not in possession of the premises during the period for which rent was claimed, the premises having been locked by the corporation. The respondents contended that no special circumstances were made out and that there was no triable issue. The High Court, after hearing both sides, allowed the revision petition, set aside the trial court's order and the ex-parte decree, and granted leave to the petitioner to defend the suit, subject to payment of costs of Rs. 5,000 to the respondents. The court held that the advocate's medical emergency was a special circumstance, the application was filed within 30 days without delay, and the petitioner had a triable defense. The court directed the trial court to dispose of the suit within six months.
Headnote
A) Civil Procedure - Summary Suit - Setting Aside Ex-Parte Decree - Order 37 Rule 4 Code of Civil Procedure, 1908 - The court held that the defendant's advocate's non-appearance due to a medical emergency constitutes a special circumstance warranting setting aside the ex-parte decree, especially when the application was filed within 30 days and the defendant had a triable defense. The court emphasized a liberal approach to avoid penalizing the litigant for the advocate's default. (Paras 11-14) B) Civil Procedure - Summary Suit - Triable Defense - Order 37 Rule 4 Code of Civil Procedure, 1908 - The court noted that the defendant raised a triable defense regarding arrears of rent for a period when he was not in possession due to the premises being locked by the corporation, which required adjudication. (Paras 6, 14) C) Civil Procedure - Summary Suit - Delay - Order 37 Rule 4 Code of Civil Procedure, 1908 - The court observed that the application was filed within the 30-day window period, and there was no delay, which weighed in favor of setting aside the decree. (Paras 5, 14)
Issue of Consideration
Whether the trial court was justified in dismissing the application to set aside the ex-parte decree in a summary suit under Order 37 Rule 4 CPC when the defendant's advocate failed to appear due to a medical emergency and the defendant had a triable defense.
Final Decision
The High Court allowed the civil revision petition, set aside the order dated 10.10.2025 passed by the Principal Judge, City Civil Court, Chennai in I.A.No.1 of 2025 in O.S.No.4110 of 2024, and set aside the ex-parte decree. The court granted leave to the petitioner to defend the suit, subject to payment of costs of Rs. 5,000 to the respondents 1 and 2 within two weeks. The trial court was directed to dispose of the suit within six months.
Law Points
- Order 37 Rule 4 CPC
- special circumstances
- setting aside ex-parte decree
- summary suit
- triable defense
- advocate's medical emergency
- liberal approach
