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Pal JaIn and anr. Vs. Mulakh Raj - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 216 of 1978
Judge
Reported inAIR1987Delhi21; 1985(9)DRJ145
ActsCode of Civil Procedure (CPC), 1908 - Order 37, Rule 3
AppellantPal JaIn and anr.
RespondentMulakh Raj
Advocates: P.D. Gupta, Adv
Cases ReferredArjun Lal v. Rawel Kaur
Excerpt:
.....civil procedure - order 37, rule 3--defendants served on 12-10-77 and counsel for the respondent filed appearance on 19-10-77 but address form was filed along with application for condensation of delay on 6-1-1978. trial court decreed the suit. the respondent filed revision.; that filing of the address for service is not mandatory part of order 37, rule 3. decree was set aside. - - ' (4) on 13th november, 1977 an application dated 8th november, 1977 was filed on behalf of the plaintiff under order 37 rule 3 and it was prayed that the decree be passed with costs as the defendants had failed to comply with the mandatory provisions of filing the address for service and giving notice to the plaintiff for entering appearance. (10) the notice of entering appearance may not have been given..........recovery of rs. 10.172.00 under the provisions of order 37 of the code of civil procedure. this suit was filed on or about 1st june, 1977. it came up before the court on 3rd june, 1977 when the court directed that the suit be registered and summons under order 37 be issued to the defendant/petitioners for 9th august, 1977. the defendants were served with the summons under the provisions of order 37 rule 2 of the code of civil procedure on 12th october, 1977. on 19th october, 1977 the defendants caused the vakalatnama to be filed on their behalf through sh. p.d. gupta, advocate. (2) the suit came up before the court on 19th october, 1977 and it appears that the counsel for the defendants had filed a power-of-attorney executed in his favor by the respondents on that date. the order.....
Judgment:

Yogeshwar Dayal, J.

(1) respondent Mulakh Raj, had filed a suit for the recovery of Rs. 10.172.00 under the provisions of Order 37 of the Code of Civil Procedure. This suit was filed on or about 1st June, 1977. It came up before the court on 3rd June, 1977 when the court directed that the suit be registered and summons under Order 37 be issued to the defendant/petitioners for 9th August, 1977. The defendants were served with the summons under the provisions of Order 37 Rule 2 of the Code of Civil Procedure on 12th October, 1977. On 19th October, 1977 the defendants caused the vakalatnama to be filed on their behalf through Sh. P.D. Gupta, Advocate.

(2) The suit came up before the court on 19th October, 1977 and it appears that the counsel for the defendants had filed a power-of-attorney executed in his favor by the respondents on that date. The order sheet of 19th October, 1977 is not very legible and it cannot be said whether counsel for the defendants was present when the suit was taken up by the court on that date.

(3) However, the suit was adjourned to 24th October, 1977. On 24th October, 1977 both the counsel for the parties were present and it was noticed in the order sheet 'that vakalatnama for appearance has been filed. For further proceedings to come up on 14th November, 1977 as the address form has not been filed.'

(4) On 13th November, 1977 an application dated 8th November, 1977 was filed on behalf of the plaintiff under Order 37 Rule 3 and it was prayed that the decree be passed with costs as the defendants had failed to comply with the mandatory provisions of filing the address for service and giving notice to the plaintiff for entering appearance.

(5) On this application, the learned trial court accepted the submission of the plaintiff and held that the averments made in the plaint were deemed to be admitted and passed a decree for the sum claimed in the plaint.

(6) The plaintiff was also awarded interest @12% per annum on the principal amount of Rs. 8,137.75 from the date of the institution of the suit till the passing of the decree.

(7) Against this order the defendant/petitioners have come up in revision and submitted that the appearance had been entered within the time prescribed i.e. 10 days by filing the power-of-attorney of the learned counsel for the defendants. In any case the presence of the counsel was noticed by the trial court on 24-10-1977 thereforee the plaintiff had the notice of entering appearance of the defendants. It is submitted that the only default was in not filing the address for service which was sought to be filed on 6th January, 1978. It is further submitted that the address for service was filed along with an application for condensation of delay, if any, in filing the same on 6-1-1978.

(8) Learned counsel for the defendant/petitioners brought to my notice a decision of T.P.S. Chawla, J. dated 20th July, 1981 passed in C.R. No. 223 of 1981 and reported as Arjun Lal v. Rawel Kaur, 1981 R.L.R. 593 Chawla, J. while construing the provisions of Order 37 Rule 2 had held that '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.' The learned Judge further held 'that Subrule (3) of Rule 2 has nothing to say as to the effect of non-compliance 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 Sub-rules (1) and (3) of Rule 3. Those sub-rules 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. The learned Judge took the view that it is only the entering of appearance which is mandatory part of Rule 3 of Order 37 and filing of address for service and giving notice to the plaintiff or his counsel of entering appearance are not mandatory provisions and if there is a violation thereof the same can be compensated by costs. In any case in violation thereof, the suit could not be decreed.

(9) This judgment covers the case of the petitioners fully. It is clear that they had filed the vakalatnama on 19th October, 1977 and, thereforee, they had entered appearance.

(10) The notice of entering appearance may not have been given separately but the overt fact that presence of the counsel for the defendants as well as the counsel for the plaintiff is noticed in the order sheet, it shows that the plaintiff had the notice of entering appearance on behalf of the defendants. The only fault which lay on the part of the defendants was that they did not file separately the address for service.

(11) However, the application had been filed on 6th January, 1978 for condensation of delay in filing the address for service.

(12) Since Chawla,J. had held that the filing of address for service is not mandatory part of Order 37 Rule 3, the trial Court could not have passed the decree by assuming that the facts stated in the plaint are admitted.

(13) I would accordingly set aside the impugned judgment and decree dated 13th February, 1978 and direct the trial court to proceed further with the suit in accordance with law. In the normal course the proceedings will strait again only if the plaintiff applies for summons for judgment. Since nobody has appeared today on behalf of the plaintiff/respondent, parties are directed to appear before the trial court on 15th July, 1985.

(14) Parties are, however, left to bear their own costs of the present proceedings.


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