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Jivaraj Motilal Vs. Marthaka Plastic Industries and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1985)2MLJ256
AppellantJivaraj Motilal
RespondentMarthaka Plastic Industries and ors.
Excerpt:
.....1979 and it was then realised that though vakalat in the suit had been filed on 17th april, 1979, notice of appearance had not been given and thereupon the suit was posted to 14th august, 1979. on that day also, it was represented on behalf of the petitioner that notice of appearance had not been served and since the respondents as well as their counsel were absent, a decree was passed in the suit as prayed for with costs on 14th august, 1979. in i. in the affidavit filed in support of these applications, the respondents stated that vakalat on their behalf had been filed only in the proceedings for the attachment before judgment and not in the suit and that they had not been served with summons as well as the copy of the plaint and since they did not hear anything from the court, they..........may be instituted by presenting a plaint containing a specific averment to the effect that the suit is filed under order 37, c.p.c. and that no relief falling outside the ambit of the rule had been claimed in the plaint with the inscription in the cause title that the suit is filed under order 37, c.p.c. order 37, rule 2(2), c.p.c, states that the summons shall be in form 4 in appendix b.a reference to the same shows that it is a summons to cause an appearance to be entered for the defendant within ten days from the service thereof, in default of which the plaintiff will be entitled, on the expiry of a period of ten days, to obtain a decree for a sum not exceeding the sum mentioned therein. the summons further provides that if the defendant or defendants enter appearance, then a.....
Judgment:
ORDER

V. Ratnam, J.

1. The plaintiff in O.S. No. 2440 of 1979, II Assistant City Civil Court, Madras is the petitioner in this civil revision. In that suit filed on 21st March, 1979 under the provisions of Order 37, C.P.C. the petitioner had prayed for a decree against the respondents herein for the recovery of a sum of Rs. 25,160 with interest and costs stated to be due on three promissory notes, dated 20th August, 1975, 4th November, 1975 and 9th March, 1976 respectively. Along with the plaint, the petitioner had also filed I.A. No. 5947 of 1979 praying for an order of attachment before judgment over the house and the ground bearing door No. 3, Krishna Iyer St., George Town, Madras-1. On that application, on 3rd April, 1979, notice calling upon the respondents to furnish security returnable by 19th April, 1979, was ordered. On 12th April, 1979, counsel undertook to appear and on 17th April, 1979, a vakalat on behalf of the respondents (defendants) was filed in the suit. Subsequently, on 19th April, 1979, a counter was filed on behalf of tire respondents and on the next day, an affidavit of undertaking was also filed by the respondents, on the basis of which the court recorded the undertaking and closed the application for attachment before judgment. The suit was posted to 12th July, 1979 and it was then realised that though vakalat in the suit had been filed on 17th April, 1979, notice of appearance had not been given and thereupon the suit was posted to 14th August, 1979. On that day also, it was represented on behalf of the petitioner that notice of appearance had not been served and since the respondents as well as their counsel were absent, a decree was passed in the suit as prayed for with costs on 14th August, 1979. In I.A. No. 4281 of 1982 filed under Order 37, Rule 3(7), C.P.C. and I.A. No. 17646 of 1979 preferred under Order 37, Rule 4, C.P.C. the respondents prayed that the delay of 24 days in seeking to set aside the decree should be condoned and the decree passed against them on 14th August, 1979 should be set aside. In the affidavit filed in support of these applications, the respondents stated that vakalat on their behalf had been filed only in the proceedings for the attachment before judgment and not in the suit and that they had not been served with summons as well as the copy of the plaint and since they did not hear anything from the court, they contacted their counsel on 25th September, 1979 when they learnt that the suit had been decreed on 14th August, 1979, According to the respondents, the passing of a decree without taking the first step, namely, the service of summons, was invalid, and rendered the decree liable to be set aside. Adverting to the delay in filing the application for setting aside the ex parte decree, the respondents maintained that there was no delay at ail as they became aware of the passing of the decree only on 25th September, 1979 and that: the application for the condonation of the delay was filed only by way of abundant caution.

2. In the counter filed by the petitioner, after referring to the application for attachment before judgment and the closure of the same on 20th April, 1979, he stated that the respondents had received on 16th April, 1979 a copy of the plaint as well as the notice of the first hearing of the suit on 12th July, 1979, and since thereafter the respondents failed to observe and fulfil the provisions of Order 37, C.P.C. the suit was decreed. The petitioner also maintained that at all material times the respondents were fully aware of the suit and time was granted to the respondents even on 12th July, 1979 to give notice of appearance to the petitioner and the suit was adjourned to 14th August, 1979, for this purpose and, therefore, the respondents cannot claim that they were not aware of the proceedings. The petitioner also stated that the reasons set out for the condonation of the delay are not correct and had been given only with a view to protract the proceedings and delay the realisation of the amount due under the decree and, therefore, no ground has been made out for condoning the delay. In a supplemental counter affidavit filed by the petitioner, he brought to the notice of the court how after the suit was decreed on 14th August, 1979, proceedings in execution were taken in E.P. No. 2529 of 1980 and the respondents were served with sale notice for the sale of the property on 3rd February, 1982. The petitioner also referred to a breach of the. undertaking given by the respondents to court not to sell or dispose of the property bearing door No. 3, Krishna Iyer St., George Town, Madras-1, by the sale thereof on 27th June, 1981 under document No. 429 of 1981, and reiterated the stand taken by him earlier regarding the validity of the decree and also the delay.

3. The learned II Assistant Judge, City Civil Court, Madras, found that though the respondents had entered appearance through counsel and filed a vakalat on 17th April, 1979, there had been no service of summons on the respondents with a copy of the plaint and in the absence of such service of summons in Form 4 as prescribed in Appendix B, the first of a series of successive steps had not been complied with and, therefore, there was no scope for other steps following the first step being fulfilled and thus the decree in the suit had been passed without complying with the mandatory provisions of Order 37, Rules 2 and 3, C.P.C. rendering the decree liable to be set aside. It was also found that when the decree is liable to be set aside, it followed automatically that the delay in seeking to set aside the decree is also liable to be condoned. In that view, the learned II Assistant Judge, City Civil Court, Madras, allowed I.A. No. 4281 of 1982 and 17646 of 1979 and set aside the decree passed on 14th August, 1979 in the suit.

4. In this revision directed against that order, the principal question that arises for consideration is, whether the court below was right in the view it took regarding the decree passed and also in setting it aside. The learned Counsel for the petitioner strongly relied upon the filing of the vakalat in the suit on behalf of the respondents on 17th April, 1979 and contended that the respondents had entered appearance, but had not given notice of such appearance, and therefore, the further steps had been taken culminating in the passing of the decree on 14th August, 1979 and no exception could, therefore, be taken to the decree passed in favour of the petitioner on 14th August, 1979, nor could it be set aside as had been done by the court below.

5. Order 37, C.P.C. prescribes a strict and stringent procedure with reference to the particular class of suits to which those provisions are to be applied. The pivotal provisions of the stringent procedure so prescribed are to be found in Order 37, Rules 2 and 3, C.P.C. Under Order 37, Rule 2(1), C.P.C. a suit under the summary procedure may be instituted by presenting a plaint containing a specific averment to the effect that the suit is filed under Order 37, C.P.C. and that no relief falling outside the ambit of the Rule had been claimed in the plaint with the inscription in the cause title that the suit is filed under Order 37, C.P.C. Order 37, Rule 2(2), C.P.C, states that the summons shall be in Form 4 in Appendix B.A reference to the same shows that it is a summons to cause an appearance to be entered for the defendant within ten days from the service thereof, in default of which the plaintiff will be entitled, on the expiry of a period of ten days, to obtain a decree for a sum not exceeding the sum mentioned therein. The summons further provides that if the defendant or defendants enter appearance, then a further summons for judgment will be served at the hearing of which, the defendant or defendants would be entitled to move the court for leave to defend the suit. The summons further proceeds to state that leave to defend the suit may be obtained if the court is satisfied that there is a defence to the suit on the merits. Under Order 37, Rule 2(3), C.P.C. the defendant shall not defend the suit unless he enters appearance. Further if there is default in his entering appearance then, the plaint allegations shall be deemed to be admitted and the plaintiff shall be entitled to a decree for a sum not exceeding that mentioned in the summons together with interest and such other sums, and such a decree may be executed forthwith. A careful reading of Order 36, Rule 2(1) to (3), C.P.C. in the light of the prescribed form of summons shows that unless the defendant or defendants enter appearance within ten days of the service of summons, the other consequences mentioned under Order 37, Rule 2(3), C.P.C. would follow.

6. It is now necessary to refer to Order 37, Rule 3, C.P.C. Under Order 37, Rule 3(1), C.P.C. the plaintiff is obliged to serve on the defendant together with the summons in Form 4 under Order 37, Rule 2(2), C.P.C. a copy of the plaint and other annexures and thereafter the defendant, within ten days of such service, has to enter an appearance either in person or by pleader and, in either case, an address for service or notice on him shall be filed by him in court. Sub-clause (2) of Order 37, Rule 3, C.P.C. declares that if all summonses and notices are left at the address given by the defendant or defendants for service, that would be due service. Order 37, Rule 3(3), C.P.C. requires the defendant or defendants to give notice of appearance to the plaintiff's pleader or to the plaintiff, if he appears in person, on the day of entering the appearance, 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. When the defendant enters appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form 4-A in Appendix B 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 behalf there is no defence to the suit and thereafter the defendant may, at any time within ten days from the service of such summons for judgment, apply on such summons for leave to defend such suit disclosing such facts as may be deemed sufficient to entitle him to defend, and the court may grant leave to defend either unconditionally or upon such terms as may appear to the court to be just. The proviso to Sub-clause (5) of Order 37, Rule 3, C.P.C. states that leave to defend should not be refused unless the court is satisfied that the facts disclosed do not indicate a substantial defence to be raised or that the defence intended to be raised is frivolous or vexatious. The second proviso therein states 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 should not be granted, unless the admitted amount is deposited. Under Sub-clause (6)(a) of Order 37, Rule 3, C.P.C. at the hearing of the summons for judgment, if the defendant does not apply for leave or if such an application is made and is refused, the plaintiff shall be entitled to judgment forthwith. Under Sub-clause (6)(b) of Order 37, Rule 3, C.P.C. where the defendant is permitted to defend the whole or any part of the claim, the court may direct him to furnish security within such time as may be fixed by the court and in the event of a failure to furnish security within the time so prescribed by the court or to carry out such other directions as may have been given by the court, the plaintiff shall be entitled to judgment forthwith. Order 37, Rule 3(7), C.P.C. clothes the Court with power to excuse the delay in entering an appearance or in applying for leave to defend the suit by the defendant for a sufficient cause shown. A careful consideration of these two vital provisions establish that a defendant is not entitled to defend unless he enters appearance and in default of appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff will be entitled to a decree. When, however, the defendant enters appearance in response to the service of summons in Form 4 in Appendix B under Order 37, Rule 2(1), C.P.C. he has to do so within ten days of such service and he is obliged to file an address for service of notice on him, on that day, he has also to give notice of appearance to the plaintiff or his counsel. After the defendant enters appearance under Order 37, Rule 2, C.P.G. a summons for judgment in Form 4-A in Appendix B has to be served by the plaintiff on the defendant not less than ten days from the date of service supported by an affidavit verifying the particulars or cause of action and the amount of claim and setting out the belief of the plaintiff that the defendant has no defence to the suit and within ten days from the service of such summons for judgment, the defendant may, by affidavit or otherwise, disclose such facts as may be deemed sufficient to entitle him to raise a defence and apply for leave to defend the suit and thereafter the court may grant leave either unconditionally or upon such terms as may appear to the court to be just. If a part of the amount claimed is admitted by the defendant to be due from him, leave to defend should not be granted unless the admitted amount is deposited. If, at the hearing of such summons for judgment, the defendant does not apply for leave to defend or if such an application has been made and refused, the plaintiff will be entitled to judgment forthwith. If the defendant is permitted to defend either the whole or any part of the claim, the court may direct him to furnish security within such time as the court may fix and on failure to fulfil such a direction, the plaintiff will be emitled to judgment forthwith. This broadly is the scheme of the strict and stringent provision of Order 37, Rules 2 and 3, C.P.C. intended to minimise the duration of suits instituted under the special procedure. In this case, the summons as envisaged under Order 37, Rule 2(2), C.P.C. had not been served on the respondents in the manner contemplated under Order 37, Rule 3(1), C.P.C. No doubt, the petitioner asserted that a copy of the plaint had been taken by the counsel for the respondents on 16th April, 1979. That had not been established at all. There is, therefore, no compliance with the procedure indicated under Order 37, Rule 3(1), C.P.C.

7. Whether the filing of a vakalat on 17th April, 1979 on behalf of the respondents would make any difference has next to be considered. Here again, it is difficult to accept the stand taken by the respondents to the effect that the vakalat had been filed only in the proceedings taken out by the petitioner for securing an order of attachment before judgment, for, it is seen from a reference to the vakalat that it had been filed in the main suit and not only in the interlocutory application for an order of attachment before judgment. The vakalat has not been merely put into the court. Earlier, the filing of the application by the petitioner for securing an order of attachment before judgment has been referred to. It is in response to a notice served in that application, on 12th April, 1979, counsel undertook to appear on behalf of the respondents and finally filed the vakalat in the suit on behalf of the respondents on 17th April, 1979 and thereafter a counter as well as an affidavit of undertaking had been filed on behalf of the respondents by the same counsel and on 20th April, 1979 after recording the undertaking, the application for attachment before judgment was closed. Though, ordinarily, counsel enter appearance only after service of summons, yet in this case, such appearance had been entered even prior to the service of summons. In other words, even before the stage contemplated, the defendants in the suit had entered appearance through counsel to the knowledge of the petitioner and the vakalat had contained an address for service of notice on the respondents. Under Order 37, Rule 3(2), C.P.C. if the notice required to be served on the respondents had been left at the address of the counsel given in the vakalat, that would be sufficient. No doubt, Order 37, Rule 3(3), C.P.C. contemplates notice of appearance being given by the defendant to the plaintiff's pleader on the day when the defendant enters appearance. But, on the facts and Circumstances of this case, it appears to me that was not necessary because the vakalat on behalf of the respondents had been filed in the suit itself to the knowledge of the petitioner as well as his counsel and an address for service had also been indicated in the vakalat filed by the respondents and that would be more than sufficient notice of appearance by the defendants. Therefore, it can be taken that the respondents had entered appearance even prior to the expiry of ten days of the service of summons and had also given notice of appearance to the petitioner. Even so, there has been a failure on the part of the petitioner to take the further steps prescribed under Order 37, Rule 3(4), C.P.C. There is no dispute that after the respondents entered appearance through counsel on 17th April, 1979 there had been no service on them of a summons for judgment in Form 4-A in Appendix B. It is also not in dispute that the other requirements of Order 37, Rule 3(4), C.P.C. were not complied with. Only upon compliance with the requirements of Order 37, Rule 3(4), C.P.C. and the service of summons for judgment, defendant can make an application for leave to defend the suit as provided under Article 118 of the Limitation Act, 1963 which may either be granted or not granted and the other consequences referable to the same would follow only thereafter Therefore, in this case, there has been a non-compliance with Order 37, Rule 3(4), C.P.C. by the petitioner and the petitioner cannot take advantage of his own default and claim that the decree passed as a consequence thereof should be maintained. Thus even construing the filing of the vakalat on behalf of the respondents on 17th April, 1979 which contained the name of the counsel as well as an address for service to the knowledge of the counsel for the petitioner as sufficient compliance with Order 37, Rule 3(1) and (3), C.P.C. there has been a non-compliance with Order 37, Rule 3(4), C.P.C. and it is only on account of this that the respondents had not been able to apply for and obtain leave and that had resulted in a decree being passed against the respondents under Order 37, Rule 6(a), C.P.C. Thus, on a careful consideration of the relevant provisions in the light of the facts in this case, it is clear that there has been substantial violation of the provisions of Order 37, Rule 3(4), C.P.C. and that has resulted in the passing of the decree against the respondents without their having been given an opportunity to apply for leave to defend the suit and, therefore, the decree passed against them suffered from this procedural irregularity and deserved to be set aside. The. court below was, therefore, quite right in having set aside the decree passed against the respondents.

8. The learned Counsel for the petitioner next submitted that there had been no consideration at all by the court below of the question of delay and that the court had mechanically and automatically proceeded to condone the delay on the ground that when the decree is liable to be set aside, the delay also should be condoned. No doubt, the learned Counsel for the petitioner is, to some extent, justified in this criticism of the approach made by the court below on the question of delay. However, on a consideration of the merits, there does not appear to be any substance in the objection raised by the petitioner. It is seen from paragraph 5 of the affidavit filed on behalf of the respondents in support of these applications that they contacted their counsel on 25th September, 1979 and that they became aware that day that the suit had been decreed on 14th August, 1979. Again, in paragraph 8, the respondents stated that there had been no delay at all as they came to know of the passing of the decree only on 25th September, 1979. In answer to this, the petitioner has not stated anywhere in the counter-affidavit that the respondents became aware of the passing of the decree in the suit earlier to 25th September, 1979. Even in the supplemental counter-affidavit filed by the petitioner, the petitioner has not stated anything to show that the respondents were aware of the passing of the decree even prior to 25th September, 1979 and, therefore, the delay ought not to be condoned at all. Earlier, it had been found that there had been no service of summons in Form 4-A in Appendix B as envisaged by Order 37, Rule 3(4), C.P.C. and in such a situation, it has to be held that the respondents could not have applied for leave to defend within the time prescribed under Article 118 of the Limitation Act, 1963, and that they became aware of the passing of the decree only on 25th September, 1979 and the application had been filed on 8th October, 1979 well within the time prescribed by the last column of Article 123 of the Limitation Act, 1963, with reference to cases where summons is not duly served. Even applying Article 137 of the Limitation Act, 1963, the application had been filed within the time prescribed thereunder. Looked at from any point of view, there has been no delay at all in the filing of the application to set aside the ex parts decree and even if there was any, that had been satisfactorily explained, as it is not the case of the petitioner that the respondents had knowledge of the passing of the decree earlier to the date mentioned by them. Under those circumstances, the order of the court below condoning the delay and also setting aside the ex parte decree cannot be assailed at all on the ground that it is vitiated by illegalities and irregularities. The civil revision petition is, therefore, dismissed. There will be, however, no order as to costs.

9. In the course of the hearing of the civil revision petition, the learned Counsel for the petitioner brought to the notice of the court that the respondents, contrary to the undertaking given by them in the application for attachment before judgment filed by the petitioner, have disposed of the house on 27th June, 1981 under document No. 429 of 1981. It is made clear that the respondents were ill-advised in so disposing of the property contrary to the undertaking given by them to the court and that the undertaking given earlier by the respondents to court would continue to operate till the further proceedings in the suit inclusive of the execution proceedings come to a close.


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