Himachal Pradesh High Court
CS/60/2019 on 19 March, 2021
Bench: Vivek Singh Thakur
Civil Suit No. 60 of 2019
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19.03.2021 Present: Mr.N.K. Bhalla, Advocate, for the plaintiffs.
Mr. Sudhir Thakur, Senior Advocate, alongwith
Mr.Karun Negi, Advocate, for the defendants.
OMP No. 58 of 2020
This application has been filed on behalf of the
applicants-defendants for bringing on record some relevant
documents to substantiate their defence.
2. Subject to proving these documents in accordance
with law and all just legal exceptions, no objection has been
communicated for allowing the application.
3. In view above, documents are taken on record,
subject to proof, in accordance with law and also to all just and
legal exceptions.
4. Application stands disposed of.
Civil Suit No.60 of 2019
5. Suit has been filed on 29.06.2019 under Order 37
Code of Civil Procedure (CPC) for recovery of certain amount.
Notices to defendants were issued on 01.08.2019, returnable on
16.09.2019.
6. On 16.09.2019 notices issued to the defendants
were reported to be awaited. On 16.11.2019, it was reported by
the Dealing Hand of the Registry that notices issued to
defendants No.1 and 2 through registered A.D. for 16.09.2019
had been received back with a report unclaimed. Whereas,
notices through Process Serving Agency were also awaited even
on that day also.
7. On 28.11.2019, it was reported by the Dealing Hand
that notices issued to defendants No.1 and 2, sent through
Process Serving Agency, were awaited, however, an application
under Order 37 Rule 3 CPC was filed by the defendants on
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16.09.2019 itself. Meaning thereby that defendants, though had
returned the notices to registered A.D. unclaimed and though
report regarding notices sent to them through Process Serving
Agency was yet to be received, however, defendants were
knowing next date of hearing for which notices were issued to
them and, therefore, an application under Order 37 Rule 3(5)
CPC was filed on 16.09.2019 itself seeking leave of the Court to
defend Civil Suit.
8. Before filing application for leave to defend, Power
of Attorney on behalf of the defendants was signed on
08.09.2019, which was filed in the Registry on 09.09.2019.
Therefore, defendants can be presumed to have been served
latest by 08.09.2019, if not prior to that, and as such
appearance of the defendants in the Court may be deemed to
have been put on 09.09.2019, on the date on which Power of
Attorney has been filed. But alongwith Power of Attorney, as
required under Order 37 Rule 3(i) CPC, address, for service of
notices on the defendants, has not been filed either separately
or by mentioning it in the Power of Attorney itself. In the Power
of Attorney only name and parentage of defendant No.2 through
whom defendant No.1 is also represented, has been mentioned.
9. Be that as it may, address of defendants for the
service can be considered the same as has been mentioned in
the written statement as on issuing notices upon such address,
defendants have come forward for putting in appearance in the
Court through pleader. As per Sub-Rule (3) of Rule 3 of Order 37
CPC, on the date of entering appearance, notice of such
appearance was to be given by the defendants to the plaintiffs'
pleader either by notice delivered at or sent by a pre-paid letter
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directed to the address of the plaintiffs' pleader.
10. In present case, notice of appearance in the Court
by filing Power of Attorney on 09.09.2019 has not been given to
the plaintiffs. However, defendants have preferred an
application under Order 37 Rule 3 (5) CPC and the same was
filed in the Registry of this Court on 16.09.2019 though pre-
matured, however, copy thereof, was supplied to counsel for the
plaintiffs on 16.09.2019 which can be considered as a notice to
the counsel for the plaintiffs with respect to appearance of the
defendants in the Court and the said date is within period of ten
days from 08.09.2019.
11. In response to the application preferred by the
defendants under Order 37 Rule 3(5) CPC plaintiffs have filed
reply to the same on 23.10.2019, wherein besides other
objections, it was also stated that separate application under
Order 37 Rule 3(4) CPC was being preferred for serving a
summon for judgment. Notice of judgment was to be served
upon the defendants under above referred Sub-Rule (4) and as a
matter of fact on the same day i.e. on 23.10.2019, summon for
judgment as provided under Form No.4A Appendix B of CPC
alongwith affidavit in support of summon for judgment was also
filed in the Registry. Thereafter, matter was listed before
Additional Registrar (Judicial) on 19.11.2019 and time was
granted to the defendants to file reply on behalf of the
defendants within three weeks. However, it is clarified by
learned counsel for the defendants that it was time, granted to
file rejoinder to the defendants' OMP No.497 of 2019 filed under
Order 37 Rule 3(5) CPC and in pursuant thereto, rejoinder to that
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application was filed on 27.11.2019 and thereafter case was
listed in the Court on 06.12.2019.
12. From the aforesaid circumstances, it is apparent
that application filed by the defendants under Order 37 Rule 3(5)
CPC is pre-mature as it was to be filed after service of summon
for judgment as provided under Sub-Rule (4) of Order 37 Rule 3
CPC. To complete the procedure and to regulate Suit under
Order 37 CPC instead of taking into consideration OMP No.497 of
2019 at this stage, after going through the affidavit filed under
Sub-Rule (4) of Order 37 Rule 3 CPC by the plaintiffs, I direct the
parties to attend the Court on 09.04.2021 with liberty to the
plaintiffs to obtain the judgment in the Suit against the
defendants for recovery, as prayed in the plaint.
13. Learned counsel for the plaintiffs is directed to
serve the summon for judgment upon the defendants today
itself through their pleader/counsel. It is made clear that this
aforesaid order has been passed for completing procedure of the
Suit, in accordance with law, as provided under Order 37 CPC as
the application under Sub-Rule 5 of Order 37 Rule 3 CPC is to be
taken into consideration after compliance of Order 37 Rule 4
CPC. As a matter of fact, learned counsel for the plaintiffs has
served summon for judgment upon the defendants in the Court
today itself through counsel representing the defendants.
14. List on 09.04.2021 in the aforesaid terms.
15. Registrar (Judicial) is directed to look into the
matter and take remedial steps to avoid procedural lapses in
future in suits preferred under Order 37 CPC.
OMP No.497 of 2019
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16. Kept in abeyance till next date of hearing i.e.
09.04.2021.
(Vivek Singh Thakur)
Judge
March 19, 2021
(Purohit)
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