Indian Oil Corporation Ltd. vs The Citilink Airways Ltd.
2004 Latest Caselaw 659 Del

JUDGMENT

Mukul Mudgal, J.

1. This suit involves the interpretation of Order xxxvII and the summary procedure to be followed upon entering of appearance by the defendant under Order xxxvII rule 3. The proceedings in this case eloquently demonstrate how undue insistence of repeated service upon the defendant can defeat the ends of justice in the name of procedural fairness.

2. It is not in dispute that on 23rd August, 1993, the defendant entered appearance through Mr. Jasbir Singh as per xxxvII Rule 1 and gave his address for service as 151, Civil Wings Chambers, Tis Hazari,Delhi.

3. Summons for judgment are required to be taken out under clause (4) of Order xxxvII Rule 3 CPC. The Order xxxvII Rule 3 CPC reads as under:-

"3. Procedure for the appearance of defendant --

(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. 4-A 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.

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing 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:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defense to raise or that the defense intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment --

(a) 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; ......."

4. Defendant No. 1 entered appearance through counsel and had given his address for service. By an order dated 2nd February, 2001, the summons for judgment in Form 4A, Appendix B of Order xxxvII was issued to the defendant through counsel. The service was so effected on Shri Jasbir Singh, the counsel for the defendant on 30th April, 2001. By an order dated 3rd April, 2002 fresh notice was issued to the defendant. By way of abundant caution even though it was not required service was again effected on the counsel for the defendant Shri Jasbir Singh on 29th November, 2003, when it was returned by the counsel by inscribing on the summons that "the defendant Citilink Airways Limited has taken away the file from him in 1994". Accordingly the process of fresh service started again and a summary suit under Order xxxvII which was filed in 1993 has unfortunately not seen the light of the day since 1993 upon the unnecessary and indeed uncalled for insistence for fresh service on the defendant. I am of the view that once defendant entered appearance as stipulated in sub-section 2, and tendered an address for service, it was sufficient service in law under clause (4) to serve summons for judgment in Form 4A in Appendix B upon the said address.

5. The defendant's counsel's plea that such service may not be effected on him as papers had been withdrawn from defendant's counsel is of no avail unless and until leave to withdraw is taken from the Court after due notice to the defendant. In the present case no such steps have been taken by the learned counsel for the defendant Shri Jasbir Singh. A salutary principle laid down felicitously by a learned Single Judge of this Court in 2004 IV AD (Delhi) 545 while bemoaning the adoption of dilatory tactics by the defendant bears repetition as follows:-

"This Revision discloses the manner in which the justice delivery system can be crippled by the adoption of dilatory devices which can succeed only because the system is bursting at the seams owing to the perennial shortage of judicial officers. A change in the mindset is essential and unavoidable and the affliction of showing leniency towards the party adopting delaying tactics calls for a paradigm shift so that this malaise can be put to a swift and clinical death.

......... The frequent occurrence of Advocates choosing not to appear in cases on any ground is leading to a break down of the system. In the present case it has been stated that the Defendant/ Tenant had taken away the file from his Advocate. This is not sufficient reason for the Advocate to discontinue appearing before the Court. It is mandatory that leave or permission of the Court should be obtained for which a pre-condition is the issuance of a notice to the client/litigant which ought to ensure his presence in Court simultaneous with the grant of leave to the Advocate to withdraw from the case. Once a party is served it may be unnecessary to serve him once again since he is obliged to appear at every hearing either personally or through his Advocate and/or representative. Since our judicial system considers it an abhorrence to decide a case in the absence of a party, it often times punctiliously conforms to procedure, even where it is obvious that the delinquent party is abusing this judicial concern."

I fully concur with the above position of law laid down by the learned Single Judge and applying this position of law to the present case hold that Shri Jasbir Singh had not moved the Court for discharge as per the High Court rules or otherwise and service of summons for judgment upon him was sufficient compliance of Order xxxvII Rule 3(4).

It is not necessary to serve the defendant again so long as the summons for judgment had been served at the address given by the defendant when entering appearance under Order xxxvII Rule 3(1). The service was effected on Shri Jasbir Singh as noticed in the orders of this Court dated 2nd February, 2001 and 27th November, 2003.

6. Thus since summons for judgment have been served by the defendant and no application for leave to defend has been filed as per Rule 6 (a) of the Order xxxvII rule (3) the plaintiff is entitled to the judgment forthwith.

7. The whole purpose of expeditious and indeed summary disposal of an Order xxxvII suit which avowedly prescribes summary procedure is totally defeated if the defendant who under Order xxxvII Rule 3(1) has already entered appearance and given an address for service of his counsel is required to be served again with the summons for judgment. A defendant who has already entered appearance, and is obviously not interested in any expeditious disposal, can easily delay proceedings by making himself scarce. This can lead to uncalled for process of prolongation of service of the summons for judgment afresh upon the defendant. Once the defendant has entered appearance through counsel after notice under sub section (1) of Order xxxvII rule (3), then the summons for judgment under sub-section (4) is only required to be served on such counsel and the law does not require such service of the summons for judgment afresh upon the defendant himself. Thus an interpretation which requires even the service of a summons for judgment, not on the lawyer who has entered appearance, but on the defendant is clearly contrary to the legislative intention providing for summary procedure. The present case is a clear example of such a course of action and the direction to re-serve the defendant who had withdrawn papers from his erstwhile counsel has led to interminable delays. The order for fresh service for the defendant with the summons for judgment has occasioned 22 aborted hearings in the Court to await service or to effect fresh service. All such hearings could have been averted and valuable judicial time and effort saved in case the service of summons for judgment served on the counsel who entered appearance for the defendant within the period of 10 days stipulated in sub clause (1) was treated as sufficient service so as to enable the Court to proceed to decree the suit in case leave to defend was not filed within the period stipulated under Order xxxvII Rule (5).

Accordingly the suit stands decreed and disposed of accordingly. The decree be drawn up accordingly.