Shri Hans Raj vs Shri Lakhi Ram
2004 Latest Caselaw 901 Del

JUDGMENT

O.P. Dwivedi, J.

1. This revision is directed against the order dated 18.10.1996 whereby learned Additional District Judge rejected the petitioner's application under O.37 Rule 4 CPC seeking reversal of the ex parte judgment and decree dated 16.11.1995.

2. Briefly stated facts leading to this case are that in May 1994 respondent Lakhi Ram filed a suit under the provisions of O. 37 CPC for recovery of Rs.4,12,600/- on the basis of loan agreement dated 24.3.1994 alleged to have been executed by petitioner/ defendant herein along with application under O. 39 Rule 1 and 2 for grant of exparte ad interim injunction restraining the defendant/ petitioner from selling, mortgaging or otherwise alienating the property bearing No. 661-1-B and 1-C situated at Ghai Road, Anand Parvat, New Delhi during the pendency of the suit. A perusal of the order sheet reveals that when the case was taken up on 31.5.1994, Court ordered issuance of notice of the application to the defendant for 28.6.1994. There was no order for issuance of summons in the suit. When the case was taken up on 28.6.1994, the court ordered issuance of summons of the suit under Order 37 CPC as also notice of the application under O.39 CPC for 25.7.1994. On 25.7.1994 again fresh summons were ordered to be issued as summons/notice could not be issued because copies of documents were not furnished. Case was adjourned to 26.8.1994. Defendant was not served. The report on the summons was that the defendant was out of station so fresh summons were ordered to be issued for 22.9.1994. Again summons could not be issued as copies of the annexures were not furnished and fresh summons were ordered to be issued for 8.11.1994. It appears that plaintiff did not file the process fee as is clear from the endorsement ''No PF'' made in the margin of the order sheet dated 8.11.1994 by the Court staff, so fresh summons were ordered to be issued for 6.1.1995. Again PF was not filed. Instead the plaintiff filed an application under O. V Rule 20 CPC. The Court, however, ordered that fresh steps be taken for services of summons under O. 37 CPC by ordinary as well as by Registered A.D post for 7.3.1995. On 7.3.1995 Presiding Officer was on leave. The process were received back with the report that the defendant is out of station. When the case was taken up on 22.5.1995, fresh summons were ordered to be issued for 30.8.1995. On 30.8.1995 again fresh summons were ordered to be issued for 16.11.1995. However, in the meantime, on 11.9.1995 the case was taken up on the application under O. V Rule 20 CPC for substituted services. This application was allowed and publication was ordered to be effected in '' The Times of India'' Delhi region for 16.11.1995. Another application was filed on 28.9.1995 and it was ordered that publication be effected now in '' Statesman''. In the meantime, defendant was served by publication in ''Statesman'' in its edition dated 21.10.1995. Since there was no appearance by the defendant, the decree for Rs. 4,12,600/- was passed in favor of the plaintiff under O.37 CPC on 16.11.1995.

3. On 31.1.1996, the petitioner/defendant filed an application under O. 37 Rule 4 CPC for setting aside the exparte decree dated 16.11.1995. It was alleged in the application that petitioner/defendant was never served with the summons nor he refused to accept the summons. It was further alleged in the application that the defendant has to visit his native place at Pathankot (Punjab) where his old mother resides as the defendant has to look after her. It was also stated in the application that allege loan agreement is a fabricated document. No such alleged loan transaction ever took place. This application was opposed by the plaintiff/ respondent and after considering the respective submissions of the learned counsel for the parties, the learned Additional District Judge rejected the application vide order dated 18.10.1996. Feeling aggrieved, petitioner/defendant has preferred this revision.

4. I have heard learned counsel for the parties and perused the record.

5. In rejecting the application, learned Additional District Judge was influenced by the fact that in the application petitioner had nowhere alleged that the information regarding the Court summons was not passed on to him by his wife. Moreover, petitioner had not disclosed the name of the person who had told him about the ex parte decree having been passed against him under O. 37 CPC on 16.11.1995. Notice was sent by registered AD at the correct address and therefore there is presumption of service Learned Additional District Judge concluded that defendant/petitioner failed to make out any special circumstance entitling him to relief under the provisions of O. 37 Rule 4 CPC. O. 37 Rule 4 reads as under:-

''ORDER xxxvII

SUMMARY PROCEDURE

4. POWER TO SET ASIDE DECREE- After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seem reasonable to the Court so to do, and on such terms as the Court thinks fit.

6. It is obvious that the non-service of summons under provisions of O. 37 CPC would by itself be a special circumstance entitling the defendant/ petitioner to ask for setting aside the decree. On the summons sent through ordinary process the Process Server had reported that defendant was reported to be out of station and this information was given by the wife. But the Process Server's report nowhere indicates that the summons were ever tendered to the wife. Summons sent by registered post came with the remarks that addressee is not available despite repeated approach. In a suit brought under O. 37 CPC, it is all the more important for the plaintiff to show that the fact that the suit was filed under summary procedure was specifically brought to the notice of the defendant because in these cases he has to put an appearance within a period of ten days. There is nothing on record to show that either the summons were tendered to the wife of the petitioner or she was told that defendant has to appear before Court within a period of ten days. A perusal of the order sheets reveal that on several dates either the ''Process fee was not filed by the plaintiff or annexures were not furnished as a result of which summons could not be issued. As regards substituted service it is clear from the perusal of copy of the newspaper '' Statesman'' dated 21.10.1995 that copy of the annexures namely the alleged loan agreement dated 24.3.1994 were not published in the newspaper. While dealing with the service of summons in the suit under O. 37 CPC, this Court in the case of Punjab and Sind Bank Vs. Ramji Das Khanna and another- took the view that where a process server has affixed only the copy of summons without affixing the copy of plaint and annexure thereto and the Registrar of the Court has not held any enquiry to determine whether service under the circumstances was sufficient, the service of summons is insufficient and it is a sufficient circumstance to set aside a decree. The Court took note of relevant rules of the CPC and the High Court rules in this regard. O. 37 CPC specifically provides that in a suit under O. 37 CPC, the plaintiff shall together with the summons under Rule 2, serve the defendant with a copy of the plaint and annexure thereto. Thus where only summons have been affixed without affixing copy of the plaint and annexures thereto, the service is not in accordance with the provisions of O. 37 Rule 3 (1) CPC and this would be a sufficient ground to set aside the decree.

7. The same view is taken by another bench of this Court in the case of New Bank of India Vs. M/s Master Steel Marketing Co.-1995 III AD (Delhi) 957. It was a case of the substituted service. It was held that where only copy of summons was published without publishing copy of the plaint and annexures there to, the service was not in accordance with law. As against this, learned counsel for the respondent has relied upon the decision in the case of M/s EMESS Advertising Service Vs. The Hindustan Times ltd., - . It was an ordinary suit for recovery and not under the provisions of O. 37 CPC. In that case publication was held to be sufficient. It is clearly distinguishable as it was rendered in the context of an ordinary suit in which case publication of summons is enough . In the case of an ordinary suit there is no need to affix copy of the plaint and the annexures thereto but in a suit brought under O. 37 CPC it is mandatory that plaintiff shall together with summons serve on the defendant a copy of the plaint and annexures thereto. It appears that learned District Judge was not satisfied with the explanation regarding date of knowledge of the decree given by the petitioner in his application under O. 37 Rule 4 CPC. Application as supported by the affidavit of the petitioner/ defendant. If at all learned Additional District Judge felt requisite details are lacking, the petitioner could have been directed to file additional affidavit or lead evidence regarding circumstances under which he came to know about the decree. Summary rejection of the petitioner's application under the circumstances was uncalled for more so when defendant denied the very cause of action viz the execution of the agreement dated 24.3.1994. In his application for setting aside the decree as well as for leave to defend, the petitioner denied the loan transaction. Bare look at the agreement renders it suspicious as it has so many cuttings which are unsigned. The only eye witness who allegedly signed the loan agreement namely Radhey Shyam has filed two self contradictory affidavits in this regard. Under the circumstances, the defense raised by the defendant/ petitioner cannot be said to be moonshine. The defendant's case, if proved, will non-suit the plaintiff/ respondent.

8. In the result, this petition is accepted and the impugned order dated 18.10.1996 is hereby set aside. The decree dated 16.11.1995 is set aside. Petitioner/defendant is granted leave to defend the suit. Parties are directed to appear before learned Additional District Judge on 5th October 2004 Learned Additional District Judge shall proceeds with the case according to law.

9. LCR be sent back. All pending applications, if any, also stand disposed of.