Narender Kumar vs Veena Dhingra
1989 Latest Caselaw 304 Del

JUDGMENT

Mahesh Chandra, J.

(1) This revision petition is directed against the order dated 31st May, 1988 whereby a decree for Rs. 13,420 together with costs and interest @ 18% per annum from 9th October, 1985 till 31st May, 1988 was passed in favor of the plaintiff-respondent and against the defendant-petitioner under Order 37 Civil Procedure Code The defendant reeling aggrieved has come up in revision before this court.

(2) Facts giving rise to this petition are that plaintiff had filed a suit under Order 37 Civil Procedure Code. against defendant on 11-11-1985 and finding that defendant cannot be served otherwise defendant was ordered to be served by affixation. In consequence on 30th March, 1988 the court accepted service to have been effected upon defendant by pasting on 7th March. 1988. Till then no appearance had been put in by defendant. Thereafter defendant filed application putting in appearance with application for condensation of delay which were dismissed by the impugned order and the suit was decreed.

(3) I have heard the learned counsel for the parties and I have come to the conclusion that the impugned order cannot be sustained in as much as the service effected up to the petitioner defendant was not strictly in accordance with provisions of Order 37 rule 3 C.P-C. No doubt the conduct of the petitioner had been of avoidance of service, but in spite thereof from the perusal of the various orders passed in the suit and the order wherein service was accepted to have been effected upon the petitioner-defendant go to indicate that there is non-compliance with Order 37 Rule 3 Civil Procedure Code There is nothing to suggest in the various summons issued that a copy of the plaint and accompanying documents which were the basis of the suit were ever served upon the petitioner-defendant while serving it by means of affixation. Order 37 rule 3(1) Civil Procedure Code enjoins upon the plaintiff to serve the defendant with summons issued , Order 37 Civil Procedure Code a copy of the plaint as also the documents which are the basis of the suit which in the instant case has not been done. I have gone through summons of the last report which has been accepted by the trial court as service and from. the perusal thereof also I do not find that copy of the plaint or pronote was affixed along with copy of the summons on 7th March, 1988, when this affixation was done. Copy of the summons received back after service is clear in this behalf and endorsement thereupon does not show that copy of the plaint or pronote were also affixed. In view of the stringent provisions of Order 37 Civil Procedure Code ., which visit the defendant with dire consequences on his failure in putting appearance within ten days from the date of service, it is incumbent that there should be a strict compliance with Order 37 rule 3 Civil Procedure Code Since there was no compliance with the provisions of rule 3 of Order 37 C.P C. all the proceedings thereafter would be of no consequence and for this short reason the decree would have to be set aside. There exist special circumstances for setting aside the decree in the instant case. However, keeping in view the conduct of the defendant in avoiding service for considerable period ex-parte decree is set aside subject to petitioner's furnishing a bank guarantee in the amount of Rs. 12,200 in the lower court on or before 31st May, 1989.

(4) Parties are directed to appear before the trial court on 1st June, 1989. It is further clarified that no fresh summons for judgment need be served upon the petitioner-defendant. Copies of the plaint and pronote and receipt may be furnished to the counsel for the petitioner-defendant on or before 22nd may, 1989 and on furnishing such copies it would be presumed that summons for judgment has been served upon the defendant and he will be duty bound to file an application for leave to defend, if he so desires on or before 1st June, 1989. There will be no order as to costs in this revision petition. Trial court record be sent back immediately.