Ashwani Kumar vs Lawrence Public School
1997 Latest Caselaw 285 Del

JUDGMENT

R.C. Lahoti, J.

(1) This is a defendant's revision feeling aggrieved by an order dated 2.4.94 whereby the Trial Court seized of a suit under Order 37 of the Cpc has rejected the defendant's application seeking leave of the Court to put in appearance and condone the delay in entering the appearance.

(2) The plaintiff-respondent is a public school. It appears that the plaintiff has sold a I seated Matador vehicle to the defendant-petitioner for a sum of Rs. 60,000.00 . Sale letter was executed.

(3) The defendant issued two cheques respectively for Rs. 25,000.00 and Rs. 35,000.00 to the plaintiff for payment of sale consideration. The delivery of vehicle was taken by the defendant. Cheque for Rs. 25,000.00 was honoured and cleared by the Bank. The cheque for Rs. 35,000.00 was dishonored on presentation. The defendant again issued two cheques for Rs. 10,000.00 and Rs. 25,000.00 respectively dated 16.11.92 and 25.12.92 which on being presented to the Bank were dishonoured. The plaintiff after serving legal notices filed the suit for recovery of Rs. 35,000 /by way of principal and Rs. 4,725.00 by way of interest calculated @ 18% p.a. from the dates of the cheques till the date of the filing of the suit.

(4) Summons under Order 37 Rule 2 of the Civil Procedure Code was issued to the defendant which was served on him on 8.7.93. The defendant failed to put in appearance within 10 days.

(5) However, the defendant did enter appearance on 23.8.93 seeking condensation of delay in putting up the appearance on the ground that there was a figure - "27893" mentioned at the right hand top of the summons which was interpreted and told by the process server to the defendant as '27.8.93' being the date of hearing. The defendant contacted his Lawyer on 22.8.93 and having been apprised by the Counsel of the legal position emerging from the provisions of Order 37 of the Civil Procedure Code moved the application on 23.8.93 which has been rejected by the impugned order.

(6) Having heard the learned Counsel for the parties I am of the opinion that the revision deserves to be allowed. The present one is not a case where a decree has been passed against the defendant and he is seeking to have it set aside. On 13.5.93, the Court having received the plaint, had directed its registration and issuance of summons 'for settlement of issues' on payment of process fee for 27th August, 1993. Before the appointed date the defendant did put in appearance. The cause which he assigned in his application did amount to a sufficient cause. The plea put forth by the defendant that the figure of "27893" appearing at the right hand top of the summons gave an impression of its being a date of hearing - 27.8.93, as there was no other date of hearing mentioned in the body of the summons does not sound to be unreasonable or improbable.

(7) There is yet another infirmity pointed out by the learned Counsel of the petitioner by reference to the provisions contained in Order 37 Rule 2 read with Order 5 Rule 5 of the Civil Procedure Code that the Court had never after application of mind directed summons of the suit to be issued in Form No. Iv Appendix-B; the Court had positively directed the summons to be issued only for settlement of issues. It is submitted that but for a specific order of the Court summons in Form No. Iv, Appendix-B of the Civil Procedure Code could not have been issued.

(8) Be that as it may, the case had not proceeded any further beyond mere issue of summons to the defendant. He having made appearance and having assigned a good reason for his belated appearance which reason on its face did not sound unacceptable should have been accepted as sufficient cause for condensation of delay in making appearance affording the defendant-petitioner an opportunity of hearing and participation in the proceedings. (See. M/s. Haryana Brewaries Ltd. v. Mis. The Aluminium Manufacturing Co. Ltd. & Am., ).

(9) The revision is allowed. The impugned order dated 2.4.94 is set aside. The Trial Court is directed to proceed further with hearing in the suit in accordance with law. The parties through their respective Counsel are directed to appear before the Trial Court on 2.4.97.