Hi-Rise Builders (Pvt.) Ltd. vs Alpha Woven Labels (India) Pvt. ...
2000 Latest Caselaw 28 Del

ORDER

S.K. Agarwal, J.

1. The plaintiff filed a suit for the recovery of Rs. 5,51,071/- against the defendant under Order 37 of the Code of Civil Procedure, 1908 (for short the CPC). On 19th August, 1999, summons on the prescribed form under Order 37 of the CPC for service on the defendant were issued for 1st December, 1999. The defendant was served with the summons on 16th September, 1999, whereby he was informed that he has been summoned to cause appearance to be entered within ten days from the service thereof; in default whereof the plaintiff would be entitled to obtain a decree for the suit amount after the expiration of the said period and that after he enters appearance, the plaintiff would thereafter serve summons for judgment at the hearing of which defendant would be entitled to move the court for leave to defend the suit on merits. In this case, however, instead of entering appearance within the period of ten days on 15.10.1999 defendant filed an application under Order 37, Rule 3 read with Section 151 of the CPC seeking leave to appear and defend the suit along with an application under Order 37, Rule 3(7) of the CPC for condensation of delay in filing the application seeking leave to defend. Admittedly no appearance was entered by the defendant.

2. Learned counsel for the plaintiff raised a preliminary objection and argued that said applications moved by the defendant are not maintainable without entering appearance and even without service of summons of judgment and therefore the same are liable to be dismissed and under sub Rule 3 of Rule 2 of Order 37 of the CPC and the plaintiff is entitled to a decree for the suit amount with interest and costs.

3. Learned counsel for the defendant argued that summons served on the defendant did not mention the "suit number" and in the absence of the same appearance could not be entered, after the brief was entrusted to him he tried to enquire from the concerned branch about the number of the suit so as to enable him to file an appropriate application. It was further argued that the accompanying application was filed on 15th October, 1999, after the suit number was made available, initially the applications were filed showing the suit number as 1809/99, which was furnished by the registry and was found to be incorrect. Further enquiries revealed that actual suit number was 1801/99, and thereafter the suit number was corrected on said applications for leave to appear and defend and for condensation of delay.

4. Perusal of the record shows that even on the copy of the summons, which was sent by the processing agency after the service, "suit number" is not mentioned. In the absence of the suit number it is impossible for any defendant to locate the suit or to enter appearance as envisaged under Order 37 of the CPC. It is as good as no service at all. In this case the defendant instead of entering appearance has moved applications seeking leave to appear and defend the suit, obviously under an erroneous advice. Since no appearance was entered, notice of the same was also not given to the plaintiffs. Sub-rule (3) of Rule 3 of Order 37 of the CPC consists of two parts, namely: (a) it requires the defendant to enter appearance within ten days of service of summons on him and (b) thereafter it requires the defendant to inform the plaintiff or his advocate of his having entered the appearance, with proper address etc. First part of this rule i.e. entering appearance is mandatory and if there is violation plaintiff becomes entitled for a decree of the suit amount under sub-rule (3) of Rule 2 of Order 37 of the CPC. However, no particular form for entering appearances is provided. Second part of this rule i.e. giving notice of such appearance to the plaintiff is directory. Reference in this regard can be made to M/s. Haryana Breweries Ltd. Vs. The Aluminium Manufacturing Co. Ltd & Anr.; and Sri Pal Jain & Anr. Vs. Mulakh Raj .

5. In this case, as suit number on the summons served on the defendant was not mentioned, the day he was informed of the "suit number" by the registry can at best be taken to be the date of service of summons on him. The purpose and intent behind this rule is only to expedite the hearing and to prevent unreasonable obstruction by a defendant who has no defense. Under the circumstances, I am of the considered view that the application filed by the defendant seeking leave to appear and defendant the suit constitutes as entering appearance as no particular form is prescribed for the same.

6. Learned counsel for the plaintiff placed reliance on Shamim Ahmed Vs. Kanhaiya Lal Seth where the facts were entirely different. In that case, defendant was in jail and he had sent a letter to the Joint Registrar of this court which was received along with the affidavit. Admittedly in that case the service was effected on 11th December, 1998 and the defendant was required to enter appearance by 22 December, 1998 whereas the letter was received by the Joint Registrar only on 5th, 1999. It was not a case where the "suit number" was not mentioned on the summons served on the defendant. Therefore any observation made in that case cannot help the defendant. As noticed above, in the absence of any "suit number" on the summons served under Order 37 in form 4, the plaintiff cannot take advantage and seek a decree under Order 37 sub-Rule 3 of Rule 2. This would come into operation when there is a proper service of summons not otherwise. Under the circumstances the application filed by the defendant for leave to appear and defend has to be taken as the applications for entering appearance. These applications are supported by the affidavit having full address and are accompanied by the Vakalatnama of a counsel.

7. For foregoing reasons the preliminary objection raised by the plaintiff is declined.

8. The plaintiff may now take steps for issuing of summons for judgment in accordance with law. The applications stand disposed of. No order as to costs.