M/S Nepa Ltd. vs M/S Media Asia Pvt. Ltd.
2001 Latest Caselaw 1517 Del

ORDER

J.D. Kapoor, J.

1. The short question calling for determination is whether filing of attorney by the counsel amounts to entering appearance as contemplated under sub-rule(1) of Rule 3 of Order 37 of Code of Civil Procedure.

2. Admittedly, the power of attorney was filed on 30th August, 2000. As per report of the Registrar the summons of the suit were served upon the defendant on 23rd October, 2000 though in the past several process were issued but were received unserved.

3. Sub-rule (1) of Rule 3 of Order 37 reads as under:

3. (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either i person or by pleader and, in either case, he shall file in court an address for service of notices on him.

4. Another relevant provision is Sub-rule (3) of Rule 3 which reads as follows:-

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a prepaid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.

5. The aforesaid provision of law came up before this court for interpretation in Arjan Lal Verma and another Vs.Smt.Rawel Kumar wherein also defendant entered appearance by his counsel by way of filing the power of attorney. The question arose whether non-compliance of other two requirements of sub-rule (3) of Rule 3 that the defendant himself shall given notice of his appearance to the plaintiff or his counsel can be regarded sufficient to disentitle the defendant to defend the suit or not.

6. It was held that under subrules (1) & (3) of Rule 3 entering an appearance does not by 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. however, it was observed that even if ti is presumed that there is some ambiguity in the meaning of the words 'enters an appearance' in sub-rule (3) of Rule 2, they must by given a narrow and restricted meaning considering that the right of the defendant to defend the suit is at stake.

7. The argument that if such a construction is allowed then the defendant can refrain from complying with the other two requirements with impunity was held to be not of any substance as in that case defendant can be imposed cost or the motions necessitated to secure compliance with the rules or of any other proceedings attributable to his default.

8. The above view was subscribed by this court in another case Sri Pal Jaina and another Vs.Mulakh Raj with the following observations:-

"The notice of entering appearance may not have been given separately but the very fact that presence of the counsel for the defendants as well as the counsel for plaintiff is noticed in the order sheet, it show that the plaintiff had the notice of entering appearance on behalf of the defendants. The only fault which lay on the part of the defendants. The only fault which lay on the part of the defendants was that they did not file separately the address for service."

9. However, keeping in view the fact that the counsel for the defendant filed his vakalatnama by way of entering appearance on 30.8.2000 whereas the actual date of service of summons is 30.10.2000 and giving benefit of the ratio of the aforesaid authorities to the defendant. I find that the filing of the Vakalatnama can be treated as entering appearance in terms of sub-rules (1) & (3) of Rule 3 with the direction to file address for service and also notice of having entered appearance.

10. Let the defendant comply this within one week. where after plaintiff shall serve summons for judgment in the prescribed form.

11. Renotify on 11th December, 2001.