Kishan Bharwany vs V.P. Aggarwal
2002 Latest Caselaw 532 Del

JUDGMENT

J.D. Kapoor, J.

1. This is a suit for recovery under summary procedure of Order 37 of Code of Civil Procedure. It was with great difficulty that the summons of the suit for appearance were served. Service was effected by way of substituted service through publication in the newspaper "Statesman". Pursuant to the service the defendant entered into appearance within the prescribed period of 10 days as required by Sub-rule (3) of Rule 3 of Order 37 which reads as under :-

"On the day of entering 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. It is only after entering into such appearance that the plaintiff is required to serve on the defendant summons for judgment in form No. 4-A appendix-B returnable not less than 10 days from the date of service supported by an affidavit verifying the cause of action and the amount claimed stating that none is proved as there is no defense to the suit."

2. Again the plaintiff is finding it difficult to get the summons for judgment served at the address given in the notice of appearance. Summons have been received back on 9th October, 2001 with the report that no such person is living at the given address. In respect of registered notice, the service report is still awaited.

3. The purpose of filing address at the stage of entering into appearance is to ensure that the summons of Judgment are served upon the defendant at the latest address as provided by the defendant so as to avoid passing of the decree in his absence. If defendant intentionally furnishes such address on which he cannot be served, he does so at his peril. Furnishing of address assumes additional importance if the summons of the suit are served by way of substituted service.

4. Sub-rule (3) of Rule 3 provides that on the day of entering 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. It is only after entering into such appearance that the plaintiff is required to serve on the defendant summons for judgment in form No. 4-A appendix-B returnable not less than 10 days from the date of service supported an affidavit verifying the cause of action and the amount claimed stating that none is proved as there is no defense to suit.

5. The past conduct of the defendant who was served by way of substituted service shows that he is evading service. This is fortified by report on the summons of the judgment. Even the registered A.D. notice has not been received. These circumstances raise strong presumption of service.

6. Sub-rule (5) of Rule 3 provides that the defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclose such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. Sub Rule (6) of Rule 3 provides that at the hearing of such summons for judgment, if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith.

7. In the instant case the defendant despite service of summons of judgment has failed to apply for leave to defend within the prescribed period of ten days. As a consequence the plaintiff is entitled to the judgment. The suit is decreed for Rs. 1,69,27,500/- with pendente lite and future interest @ 24% p.a. with cost till the date of realization. The decree sheet be prepared accordingly.