Rajesh Arora vs Mukesh Jain And Ors.
2002 Latest Caselaw 612 Del

JUDGMENT

J.D. Kapoor, J.

1. 1. The short controversy involved for determination is whether summons for judgment were duly served upon defendant Nos. 1 & 2 at the address furnished by defendants 1 & 2 in the notice filed while entering into appearance.

2. Admittedly, the address on which defendants 1 & 2 were served summons of the suit as well as notice sent by the plaintiff was 9/6172, Gali Jain Mandir, Gandhi Nagar, Delhi-110 031. It is also admitted that while entering into appearance on service of summons defendants 1 & 2 filed address for service of notice on them as 9/6178, Gali Jain Mandir, Gandhi Nagar, Delhi.

3. In order to show that defendant Nos. 1 & 2 has intentionally given wrong address, learned counsel for the plaintiff has referred to the reports of service of the summons as well as various notices and the reports of postman with regard to summons for judgment sent at the address mentioned in the plaint as well as address from where notices sent by the counsel for defendant Nos. 1 & 2 were received by the plaintiff. According to the reports on the summons for judgment at the address bearing No. 9/6172, Jain Mandir, Gandhi Nagar, Delhi was that intimation has been delivered.

4. It is beyond the pale of controversy that in a suit to which Order 37 CPC applies, all summons, notices and other judicial processes required to be served on the defendant after he enters into appearance on being served with summons for suit shall be deemed to have been duly served on him if these are left at the address given by him in such notice. Sub-rule (1) of Rule 3 of Order 37 CPC provides that plaintiff shall, together with the summons under Rule 2, serve on the defendant a copy of the plaint of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

5. The filing of address for service is a mandatory provision. If defendant does not file such address for service of notice on him while entering into appearance, presumption or inference to be drawn would be that defendant shall be served with the summons or notices or other judicial processes at the address where he was served with the summons of the suit and pursuant to which he had entered into appearance. However, when defendant on entering appearance files an address for service of summons or notices on him, it is obligatory upon the plaintiff to serve summons/notices or other judicial processes at the address given by him for such service. If the summons for judgment or other judicial processes are served at the address other than the address furnished by the defendant on entering appearance, it is non-compliance of provisions of Sub-rule (1) of Rule 3.

6. In order to appreciate the aforesaid position of law, Sub-rules (1), (2), (3) & (4) of Rule 3 need to be reproduced. These are 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 in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

(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.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the suit.

7. As is apparent, Sub-rule (4) of Rule 3 provides that if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time. The summons for judgment referred in Sub-rule (4) come within the ambit of processes referred in Sub-rule (2) viz. summonses, notices and other judicial processes which are required to be served on the defendant on his entering into appearance.

8. In the instant case summons for judgment were required to be served upon address filed by defendant Nos. 1 & 2 for service of notice on them. The said address is 9/6178, Gali Jain Mandir, Gandhi Nagar, Delhi whereas summons for judgment were dispatched at 9/6172, Gali Jain Mandir, Gandhi Nagar, Delhi, may be such service is not a service in the eyes of law.

9. Any amount of allegations against the defendants that they are playing hide and seek by filing different address while entering into appearance whereas in the past they have been served with all the notices including summons for the suit at the address mentioned in the plaint become irrelevant, once defendant files specific or particular address at the time of entering into appearance. That address alone is the relevant address for the purpose of service of summons for judgment or subsequent judicial processes and none else.

10. On this short ground alone, the application are allowed and decree dated 31.7.2001 against defendants 1 & 2 is liable to be set aside.

Keeping in view the time wasted in procuring the presence of defendants 1 & 2 after they entered into appearance may be because of any reason whatsoever, defendants 1 & 2 are directed to file application for leave to defend within two weeks.

Both IAs, stated disposed of.