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Arjan Lal Verma and anr. Vs. Rawel Kaur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 233 of 1981
Judge
Reported inAIR1982Delhi148; 20(1981)DLT361; 1981RLR593
ActsCode of Civil Procedure (CPC), 1908 - Order 37, Rule 2(3)
AppellantArjan Lal Verma and anr.
RespondentRawel Kaur
Advocates: M.L. Patney and; O.L. Rawal, Advs
Excerpt:
.....service of notices on him within 10 days of being served with the summons and also give notice of entering appearance to the plaintiff. in the present case, the defendant complied with the first requirement but not the other two. entering appearance does not of itself involve or import the filing of an address for service in court or serving notice of such appearance on the plaintiff or his counsel. the words 'enter an appearance' in order 37 rule 3(2) muse be given a narrow and restricted meaning because the right of the defendant to defend the suit is at stake.; 2. the trial judge had no jurisdiction to pass a decree against the defendant because appearance had been entered on his behalf although no notice of the appearance had been served on the opposite party for which default the..........or by pleader and (ii) file in court an address for service of notices on him. this shows that entering appearance and filing an address for service are two different things, although both have to be done within the period of ten days, and, in the normal course, would be done simultaneously. (4) then, sub-rule (3) of rule 3 adds another requirement. it says: 'onthe 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 pre-paid letter, directed to the address of the plaintiff's pleader or of the plaintiff; as the case may be'. this is the third thing to be done. the defendant must give notice of enter- ing appearance.....
Judgment:

T.P.S. Chawla, J.

(1) A suit was instituted in the court below under Order 37 of the Civil Procedure Code 1908, as amended in 1976. On 23rd April 1980 the summons was tendered to the defendant, but according to the report of the process server the defendant refused to accept it. Thereafter, an affidavit of service was filed on behalf of the plaintiff. The judge treated the refusal by the defendant as good service, and on 6th October 1980 passed an order saying: 'No appearance has been filed within the statutory period of ten days and hence the plaintiff is entitled to a judgment forthwith'. A d(cree was accordingly granted to the plaintiff. The defendant has filed this pention for revising that order.

(2) It now transpires) and is not disputed, that counsel for the defendant had, in fact, filed a power of attorney in court on 30th April 1980, which was well within the prescribed ten days. But this fact was not brought to the notice of the judge, and neither the plaintiff nor his counsel were aware of it because notice of appearance was not sent to them. The question is whether, in these circumstances, the court had jurisdiction to proceed summarily and pass a decree against the defendant.

(3) Order 37 rule 2(3) says that:

'THEdefendant shall not defend the suit................................. unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree...........................'

The 'Procedure for the appearance of the defendant' in such a suit is dealt with by rule 3. Sub-rule (1) of that rule says: 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.' It is clear from this sub-rule that the defendant has to do two things within ten days after being served with summons: (i) he must 'enter an appearance' either in person or by pleader and (ii) file in court an address for service of notices on him. This shows that entering appearance and filing an address for service are two different things, although both have to be done within the period of ten days, and, in the normal course, would be done simultaneously.

(4) Then, sub-rule (3) of rule 3 adds another requirement. It says:

'ONthe 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 pre-paid letter, directed to the address of the plaintiff's pleader or of the plaintiff; as the case may be'.

This is the third thing to be done. The defendant must give notice of enter- ing appearance to the plaintiff or his counsel.

(5) In the present case, the defendant complied with the first requirement. He entered appearance by his counsel filing the power of attorney. However, the other two procedural requirements were not complied with: an address for service was not filed in court, nor was notice of entering appearance given to the plaintiff or his counsel. thereforee, counsel for the plaintiff has argued that the defendant cannot be regarded as having entered appearance, and could not have been allowed to defend the suit.

(6) I do not agree with this argument. Sub-rule (3) of rule 2, the relevant part of which I have already quoted, prohibits a defendant from defending the suit 'unless he enters an appearance'. Sub-rules (1) and (3) of rule 3 indicate that entering appearance is one thing, filing an address for service another and giving notice of appearance to the plaintiff or his counsel a third. Sub-rule (3) of rule 2 has nothing to say as to the effect of noncompliance with the second and third requirements. In accordance with the principle of harmonious construction, the words enters an appearance' in that sub rule must be read in the same sense as is derived from subrules (1) and (3) of rule 3. Those subrules lead irresistibly to the conclusion that entering an appearance does not of itself involve or import the filing of an address for service in court or serving notice of such appearance on the plaintiff or his counsel. For, otherwise, those two requirements would not have been stated additionally and separately.

(7) And, even supposing there is some ambiguity in the meaning of the words 'enters an appearance' in subrule (3) of rule 2 (which I do not concede), I think, they must be given a narrow and restricted meaning considering that the right of the defendant to defend the suit is at stake. Counsel for the plaintiff opposed such a construction on the ground that the defendant could then refrain from complying with the other two requirements with impunity, and without fear of any consequences. That is not so. He can be mulcted in costs for the motions necessitated to secure compliance with the rules or of any other proceedings attributable to his default.

(8) For these reasons, I think, the judge below had no jurisdiction at that stage, to pass a decree against the defendant because appearance had been entered on his behalf. However, it is at the same time obvious that the decree was passed because of the omission of the defendant to serve notice of his entering appearance on the plaintiff or his counsel. Had notice been served, the decree would certainly not have been passed. All the blame for the proceedings having gone wrong must rest on the defendant. So he must pay the costs.

(9) Accordingly, this petition is allowed and the order dated 6th October 1980 made by the court below is set aside. The parties will now appear before this Court on 10th August 1981. On or before that date the defendant will file an address for service and also give notice of having entered appearance to the plaintiff. Furthermore, the defendant will pay a sum of Rs. 100.00 as conditional cost to the plaintiff on or before that date. If the costs are not paid, this petition will be deemed to have been dismissed.


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