Gurdeep Singh vs Munna Lal
1993 Latest Caselaw 77 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is filed against the order dated 7th May, 1992, passed by Shri T.D.Keshav, Sub Judge, 1st Class, Delhi, whereby the application of the petitioner under Order 37 Rule 4 read with Section 151 of the Code of Civil Procedure for setting aside the judgment and decree dated 2th August, 1991 has been dismissed.

(2) The facts of the case are that the respondent had filed on 10th September, 1990, a suit for recovery of Rs.25,000.00 under the provisions of Order 37 Civil Procedure Code . The suit was decreed by the trial court against the petitioner/defendant and in favor of the respondent/petitioner on the ground that the defendant did not put in appearance within the stipulated period.

(3) According to the defendant, be bad put in appearance within 10 days as required under Order 37 Rule 3(1) of the Code of Civil Procedure and it was over sight on the part of the court not to take notice of this fact and, therefore, he bad filed an application under Order 37 Rule 5 read with Section 151 of the Code of Civil Procedure for setting aside the judgment and decree passed against him, which itself has been dismissed by-the trial court. That was done on 2nd August, 1991. This was not considered as an appropriate service by the trial court on the ground that under order 37 Rule 3 Civil Procedure Code . on entering appearance the defendant should have given notice of appearance on his behalf to the plaintiff's pleader or the plaintiff. The learned Judge presumably has by giving this finding as kept in view the provisions of Order 37 Rule 3(3) Civil Procedure Code .

(4) The question arises for consideration in the present case is that once the appearance of the defendant in the case is admitted in the Court within the stipulated period of 10 days whether omission to give notice by the defendant under Order 37 Rule 3 Civil Procedure Code . to the plaintiffs pleader or the plaintiff will result in debarring him from contesting the suit. In this case even the address was filed by the defendant but notice of appearance was not given to the plaintiff's pleader or the plaintiff.

(5) This question arose turn consideration in Arjan Lal Verma and another v. Rawel Kaur, 20(1981) D.L.T.361, in which it was held that the mere non-filing of address or non-giving of notice of appearance do not debar a defendant from contesting the suit. Sub-rules (1) and (3) of Rule 3 indicate that entering appearance is one thing, filing an address for service another and giving notice of appearance to the plaintiff or his counsel a third. Sub-rule (3) of Rule 2 has nothing to say as to the effect of non-compliance with the second and third requirements. In accordance with the principle of harmonious construction, the words enter an appearance' in that sub-rule must be read in the same sense as is derived from sub rules (1) and (3) of rule 3. Those sub-rules lead irresistibly to the conclusion that entering an appearance does not of itself involve or import the filing of an address for service in court or serving notice of such appearance on the plaintiff or his counsel. For, otherwise, those two requirements would not have been stated additionally and separately.

(6) In the facts and circumstances of this case, the impugned order of the trial court cannot be upheld. Since the defendant/petitioner has been negligent in not giving notice to the plaintiff's pleader or the plaintiff as required under Order 37 Rule 3 (3), the application can be allowed only on the payment of costs of Rs.l,000.00 Costs shall be paid before the Senior Sub Judge.

(7) In the light of the above discussion, the revision petition is allowed and the impugned order is set aside. Parties are directed to appear before the Senior Sub Judge on 9th March, 1993 who, if necessary, will transfer the case to the concerned Subordinate Judge, who will decide in accordance with law.

(8) The records be sent immediately to the trial court.