Rule 4 of Order XXXVII, Code of Civil Procedure, 1908 confers power on the court to set aside the decree under ‘special circumstances’ and give leave to the defendant to appear and defend the................

 Rule 4 of Order XXXVII, Code of Civil Procedure, 1908 confers power on the court to set aside the decree under ‘special circumstances’ and give leave to the defendant to appear and defend the suit. Rule 4 of referred Order deals where the defendant fails to appear and files application for leave to defend; however, in the instant case, no application for leave to appear and defend was filed by the petitioner and only application seeking setting aside of ex-parte judgment and decree, not the order for initiating ex parte proceedings, was filed.

Under Rule 4 of Order XXXVII, Code of Civil Procedure, 1908, "under special circumstances" the court can set aside the decree. Rule 4 of the referred Order is subject to the condition there must be ‘special circumstances’ to support any application for setting aside decree. The plain reading of the above said Rule makes it diaphanous that it excludes ‘ordinary circumstance’ or ‘circumstances which may happen every day’. Meaning thereby, heavy burden lies on the defendant to show the circumstances due to which he was unable to appear during proceedings of the suit. The ‘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 the human being. The 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 nonservice or inadequate service.

However, in the instant case, as noted above, every possible and provided mode of service was adopted by the learned trial Court and thereafter substituted mode of service was resorted to but even then the petitioner did not bother to join the proceedings and even application seeking setting aside ex parte judgment and decree, no ‘special circumstance’ was given rather only the following ground was taken up:-

یہ کہ مقدمہ عنوان بالا میں سائل/مدعاعلیہ کی کسی بھی طریقے سے تعمیل نہ ہوئی ہے

Such ground cannot be considered especially when the address of the petitioner, given in the suit, and mentioned by him in his application are same.

Civil Petition Nos.1970-L of 2024
Muhammad Mansab vs Muhammad Hanif
19-11-2024