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Subir Kumar Bhattacharya Vs. Md. Habibar Biswas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 1412-22 of 1980
Judge
Reported inAIR1980Cal364,1980(2)CHN460,(1981)1CompLJ19(Cal),85CWN83
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rules 3(1), 3(3), 3(4), 3(5), 3(6) and 4
AppellantSubir Kumar Bhattacharya
RespondentMd. Habibar Biswas
Appellant AdvocateSakti Nath Mukherji, Adv.
Respondent AdvocateSujit Das Gupta, Adv.
DispositionPetition dismissed
Cases ReferredCooke v. Equitable Coal Co. Ltd.
Excerpt:
- .....on, the defendants were, however, absent and the plaintiffs filed an application for passing an ex parte decree on the ground that the defendants have failed to discharge their mandatory obligations under order 37 rules 3 (1) and 3 (3) of the code. notice of such an application was not served upon the lawyer for the defendants and the application being heard ex parte the learned judge allowed the same and proceeded forthwith to hear the suits ex parte. the plaintiff no. 2 was examined as p. w. 1 and the promissory notes being proved the suits were adjourned to the next day for orders.4. on the next day, that is, on november 16, 1979, the defendants appeared and filed an application under section 151 of the code for recalling the ex parte hearing. the learned subordinate judge dismissed.....
Judgment:

Anil K. Sen, J.

1. These are the two revisional applications at the instance of the plaintiff/petitioners in Money Suit Nos. 20 of 1979 and 21 of 1979 and are directed against orders bearing the same date, namely, April 7, 1980, passed by the learned Subordinate Judge, 6th Court, Alipore, in the aforesaid two suits.By the orders impugned the learned Subordinate Judge had allowed the two applications filed by the defendants in the aforesaid two suits under Order 37, Rule 4 of the Code of Civil Procedure. To appreciate the point at issue it would be necessary to refer to more or less undisputed facts shortly set out as follows.

2. The two suits were filed oh August 8. 1979. The suits coming under the purview of Order 37 of the Code, summonses in Form IV Appendix B were issued on September 18, 1979, and such summonses were served on October 2, 1979. The Court being closed for the puja holidays from September 20, 1979 to October 22. 1979, the defendants entered appearance on October 23, 1979, by filing a Vakalatnama executed in favour of a lawyer. In doing so, the defendants failed to furnish formally their address for service of notice on them though such address was set out in the Vakalatnama itself; they further failed to serve a notice of their appearance on the learned lawyer for the plaintiffs though it is claimed that such a notice was sent under Certificate of Posting to the plaintiffs themselves.

3. On the returnable date, that is, on November 15, 1979, both the plaintiffs and the defendants filed their haziras. When the matter was called on, the defendants were, however, absent and the plaintiffs filed an application for passing an ex parte decree on the ground that the defendants have failed to discharge their mandatory obligations under Order 37 Rules 3 (1) and 3 (3) of the Code. Notice of such an application was not served upon the lawyer for the defendants and the application being heard ex parte the learned Judge allowed the same and proceeded forthwith to hear the suits ex parte. The plaintiff No. 2 was examined as P. W. 1 and the promissory notes being proved the suits were adjourned to the next day for orders.

4. On the next day, that is, on November 16, 1979, the defendants appeared and filed an application under Section 151 of the Code for recalling the ex parte hearing. The learned Subordinate Judge dismissed the said application by observing that when he had heard the suits ex parte for reasons already given and when the defendants have their remedy under Order 37 Rule 4 of the Code, the prayer as made cannot be sustained. The application being so dismissed, the suits were decreed in favour of the plaintiffs ex parte against the defendants.

5. On November 28, 1979, the defendants filed applications in the two suits under Order 37 Rule 4 of the Code out of which the present revisional applications arise. These applications were ultimately heard on contest and were allowed by the learned Subordinate Judge by the orders impugned in the present revisional applications. In setting aside the ex parte decrees the learned Subordinate Judge observed that such a decree having been passed without a summons being taken out for summary judgment under Order 37 Rule 3 (4) of the Code the decree as passed cannot be sustained, if not for other reasons, on that ground alone. The learned Subordinate Judge further observed that technical breach of the provisions of Order 37 Rule 3 (1) and Rule 3 (3) need not necessarily justify the imposition of the extreme penalty of passing an ex parte decree against the defendants, more so in the facts and circumstances of the cases under consideration. In that view, the applications under Order 37 Rule 4 of the Code being allowed the ex parte decrees were set aside. Feeling aggrieved, the plaintiffs have preferred the present two revisional applications.

6. Mr, Mukherji appearing in support of these revisional applications has raised two points, the first of which appears to us to be a point of first impression having some importance. According to Mr. Mukherji, on a proper construction of Order 37 Rule 3 the learned Subordinate Judge had rightly decided on November 15, 1979, that the suits should be decreed ex parte because in law the defendants have failed to enter appearance when they failed to fulfil the mandatory obligations in the matter of entering such appearance as laid down by Order 37 Rules 3 (1) and 3 (3) of the Code and the view to the contrary taken in the order impugned is not correct. According to him, therefore, the ex parte decree that was passed was in accordance with law. Secondly, it has been contended by Mr. Mukherji that in allowing an application under Order 37, Rule 4 of the Code, the Court is required to consider whether the defendants have any reasonable defence to the suit so that a mere irregularity in the procedure leading to the passing of the ex parte decree by itself could not be a ground for setting aside the ex parte decree as done by the learned Subordinate Judge in the present case;

7. Both the points thus raised by Mr. Mukherji have been contested by Mr. Dasgupta appearing on behalf of the defendants/opposite parties. According to Mr. Dasgupta it would not be correct to interpret Order 37, Rule 3 of the Code in the manner contended for by Mr. Mukherji. Referring to the facts of the present case it has been contended by Mr. Dasgupta that there was substantial compliance with the requirement of Order 37 Rule 3 (1) of the Code when the address of the defendant was furnished in the Vakalatnama itself and so too of Order 37 Rule 3 (3) when the notice of appearance was sent to the plaintiffs under Certificate of Positing and later served upon the lawyer on October 30, 1979. Mr. Dasgupta has, therefore, contended that in the background of such circumstances it was not open to the Court to pass an ex parte decree without following the provisions of Order 37 Rule 3 (4) of the Code. So far as the second point raised by Mr. Mukherji is concerned, it has been contended by Mr. Dasgupta that in the facts and circumstances of the present case the ex parte decree not having been passed in accordance with the provision of Order 37, Rule 3 of the Code strict compliance thereof is not really called for. Rival contentions of Mr. Mukherji and Mr. Dasgupta would be referred to in further details when we consider the two points raised before us hereinafter.

8. The points thus raised before us require serious consideration. But before we go to do so we cannot but observe that in the present case the learned Subordinate judge failed to appreciate and hence follow the material provisions of Order 37 when he proceeded to hear the suits ex parte on November 16, 1979, and decreed the same on ex parte evidence On the day following. It must be said that if the learned Subordinate Judge had thought as contended for by Mr. Mukherji that there was no appearance in law by the defendants in the present case then under the provision of Order 37 Rule 2 of the Code he was to pass a decree as on admission and there was no scope for taking of ex parte evidence as done by the learned Subordinate Judge in the present case. Obviously the learned Subordinate Judge adopted a procedure of his own which is not consistent with the scheme of Order 37 because such an ex parte hearing could be made only if the provisions of Order 37, Rule 3 (4)were followed. Admittedly In the present case no such procedure was ever followed by the plaintiffs so that the hybrid procedure adopted by the learned Subordinate Judge is not within the scheme of Order 37 of the Code.

9. So far as the first point raised by Mr. Mukherji is concerned, we agree with Mr. Mukherji that Order 37 makes provision laying down a special procedure for suits of the particular nature specified by Order 37 Rule 1 (2) and such a procedure necessarily overrode the general procedure laid down by the Code. Order 37 Rule 2 (1) provides what should be the contents of such a suit. Sub-rule (2) provides how the summons is to be served. Sub-rule (3) then provides as follows:

'(3) The defendant shall not defend the suit referred to in Sub-section (1) unless he enters an appearance and in default of his entering appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with the interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith'.

10. Next follows Rule 3 of Order 37, the marginal note whereof is: 'Procedure for the appearance of the defendant'. Since the main controversy between the parties is over the construction of this provision we set out the provision as hereunder:--

'3. (1) 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.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendants, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

(3) On the 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.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other form as may be prescribed from time to time, 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 belief there is no defence to the suit.

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further 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 shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment :--

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such tune as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.'

11. According to Mr. Mukherji Order 37 of the Code lays down a special procedure for the suits coming within its purview and the different provisions incorporated in Rule 3 must be read together in the light of the said object of providing for a special procedure to determine what constitutes 'entering an appearance' as contemplated by the said Rule. Mr. Mukherji contends that Sub-rules (1) and (3) require that the defendant in entering appearance must not only file in Court the address for service of notice on him but also give notice of such appearance on the very day of entering appearance to the plaintiff in the manner specified by Sub-rule (3). According to him, mere filing a Vakalatnama executed in favour of a lawyer should not be considered to constitute 'entering appearance' because discharge of both the aforesaid obligations is a part of the act of appearance itself. Much emphasis is laid by Mr. Mukherji on the fact that unless such is the construction put to Rule 3 of Order 37, the very object of early disposal of suits governed by Order 37 would fail because in that event taking of other steps in the suit consequent to the appearance as envisaged by the Rule would either fail or would be delayed Reliance has been placed by Mr. Mukherji on the Full Bench decision of this Court in the case of Satish Chandra Mukerjee v. Ahara Prasad Mukerjee (1907) ILR 34 Cal 403, wherein the Full Bench approved the observation of Sir Ashutosh Mookherjee to the effect that the term 'appearance' not being defined by the Code 'must always be understood in reference to the particular subject matter to which it relates, and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case. Considered in that light, Mr. Mukherji contends that the very scheme of O. 37 would be frustrated and the object of 'entering appearance' would be rendered nugatory unless his construction of what constitutes 'entering appearance' be accepted.

12. Mr. Dasgupta, on the other hand, has drawn our attention to the provision of Order 3 Rule 1 which provides that any appearance may be made or done by the party in person or by his recognised agent or by a pleader appearing on his behalf. Order 3 Rule 4 provides how a pleader can be appointed who may be authorised to enter appearance on behalf of a party. Our attention has also been drawn to Order 5 Rule 1 (2) which provides how a defendant may appear on summons being served upon him. According to Mr. Dasgupta though the term 'appearance' has not been defined by the Code the aforesaid provisions indicate what really constitutes appearance and Order 37 on its terms does not contemplate anything otherwise. According to him. Order 37, Rule 3 on its terms indicates that giving of appearance and furnishing of address are acts which are to follow entering of appearance so that any default in that regard does not constitute non-appearance in law. Mr. Dasgupta further contests the suggestion that such a construction of Order 37, Rule 3 would frustrate its object by unnecessarily delaying the proceeding in the suit.

13. We have carefully considered the rival contentions put forward before us in the light of the object behind the new scheme introduced in Order 37 and the material provisions in that regard. In our view we must look to the provisions in Order 37 to find out what really constitutes 'enters an appearance'. In that perspective the other provisions or the Code relied on by Mr. Dasgupta may not furnish us the correct guidance in finding out the import of the term. Mr. Mukherji relied on the marginal note in contending that all that is prescribed in the different sub-rules of Rule 3 having their bearing on the point was intended collectively to constitute 'enters an appearance'. But in our view the marginal note in the present case furnishes no help. The marginal note to Rule 3 of Order 37 is somewhat deceptive because it is obvious on the terms of the different sub-rules of Rule 3 that all of these provisions are not provisions relating to entering appearance. On the other hand on a careful reading of Rule 3 itself it appears to us that the act of entering appearance is independent of fulfilling the two obligations provided for by Sub-rules (1) and (3), which are to be fulfilled as and when the defendant enters an appearance. The defendant's filing in court an address for service of notice on him and his serving a notice of appearance on the plaintiff or his pleader are the acts which are to follow on his entering an appearance, and as such, does not constitute really an integral part ofthe fact of appearance. We may agree with Mr. Mukherji that those are imperative obligations and are required to be duly fulfilled with reasonable diligence. But we are unable to accept his contention that fulfilment of such obligations constitutes a part of the act of appearance. In the Full Bench decision relied on by Mr. Mukherji this court was considering whether an application by a pleader who is instructed only to apply for an adjournment which is refused, is or is not an appearance within the meaning of the then provisions analogous to Order 9 Rule 3 of the Code of Civil Procedure. There was difference of judicial opinion on the point and the Full Bench only approved the earlier decision of this Court in the case of Cooke v. Equitable Coal Co. Ltd., (1904) 8 Cal WN 621 taking the view that it is not so for the purpose of entertaining an application for restoration under provisions analogous to Order 9 Rule 9 or Rule 13 of the Code of Civil Procedure. It is indeed true that the Full Bench approved the observation of Sir Ashutosh Mookherjee made in the order of reference which is relied on by Mr. Mukherji but on the scheme of the amended provisions of Order 37 Rule 3 or on its present context we are unable to hold that fulfilling the two obligations referred to hereinbefore by the defendant constitutes or was intended to constitute a part of the act of entering appearance. We are unable to agree with him that construing the words 'enters an appearance' in a manner otherwise than as contended for by him would frustrate the very object of the special procedure prescribed by Order 37. In our opinion even if was hold -- as we would prefer to do -- that fulfilling those obligations are conditions subsequent to the act of appearance that would not materially impair implementation of the scheme now introduced by Order 37 because the plaintiff can always pray for a summary judgment under Sub-rule (4) of Rule 3 when the defendant appears irrespective of whether those obligations have been fulfilled or not and further because in the event the defendant fails to fulfil those obligations with reasonable care and diligence impairing such a right of the plaintiff it would always be open to the court to strike out appearance for non-fulfilment of those obligations and then proceed to dispose of the suit in the manner prescribed by Order 37 Rule 2 (3). Mr. Mukherji contended that in the absence of any provision for imposing any such penalty the court would not have any jurisdiction to strike out the appearance if the appearance is once entered. But in our view such a power is always inherent in the court irrespective of whether there is any special provision therefor for giving effect to the provisions of the Code itself. On the scheme of Rule 3 fulfilment of the said two obligations by the defendant are intended to facilitate the plaintiff in applying for a summary judgment under Sub-rule (4) but exercise of such a right by the plaintiff is not entirely dependant thereon. Hence on the context and on the scheme of Rule 3 it cannot be said that the legislature intended fulfilment of those obligations by the defendant to be a part of his act of appearance. That being our view we must hold the learned Judge in the trial court went wrong in decreeing the suit On November 16, 1979, on the view that the defendants had not entered appearance when such a decree was passed without following the provisions of Order 37, Rule 3, Sub-rules (4), (5) and (6).

14. It appears that the revised provisions of Order 27, Rule 3 were drafted in the light of the provisions of Order 12, Rules 1, 3 and 4 of the English Rules of the Supreme Court (Revision) 1962 (See Annual Practice 1965). Under those provisions defendant is to enter appearance by properly completing a memorandum of appearance (Rule 1 (3)) which again must specify the address of the defendant or his Solicitor as the case may be (Rule 3 (3)). The defendant is also required to serve by post a copy of the memorandum of appearance on the plaintiff (Rule 4 (2)). But even under those rules serving a copy of the memorandum of appearance on the plaintiff is an act subsequent to entering appearance and Rule 3 (5) indicates that furnishing of the address is collateral to the act of appearance and Order 2, Rule 1 makes it. clear that anv non-compliance with those provisions does not render the proceeding void. Therefore, the irregularity in appearance as envisaged by order 37, Rule 3, considered even in the light of those rules on which it is substantially based, does not render the appearance a nullity as suggested by Mr. Mukherji.

15. Next we proceed to consider thesecond point raised by Mr. Mukherji. According to Mr. Mukherji in allowing an application under Order 37, Rule 4 of the Code of Civil Procedure, as was done in the present case, the court is not only required to find special circumstances for recalling the ex parte decree but the court is further required to determine whether the defendant has any substantial defence to raise in the suit or not. According to Mr. Mukherji it is so he-cause by the order to be passed on an application under Order 37. Rule 4, the Court is not only to set aside the ex parte decree but also to grant leave to defend. We feel no hesitation in agreeing with Mr. Mukherji on this point for the simple reason that the Code never contemplated that such an ex parte decree should be set aside only to enable the court to pass an ex parte decree once again the defendant having no substantial defence to the suit itself. It has been strongly contended by Mr. Mukherji that in the present case the learned Judge in passing the impugned order never went into the question and the order is silent on the point as to whether the defendant should be given leave to defend or not. Though attractive we are unable to accept this contention of Mr. Mukherji for the simple reason that though in form the application dealt with by the learned Judge in the trial court in the present case was not one really under Order 37, Rule 4 in its substance. Order 37, Rule 4 in our view contemplates the decree to be one otherwise made in accordance with Order 37. On our findings in the present case, the ex parte decree was not passed in accordance with the provisions of Order 37. Obviously, therefore, the application was really one invoking the jurisdiction of the court to rectify its own defect so that Rule 4 of Order 37 does not strictly apply on its terms.

16. In the result, both the points raised by Mr. Mukherji must fail and they being overruled we dismiss the revision application and affirm the orders impugned.

B.C. Chakrabarti, J.

17. I agree.


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