ARJAN LAL VERMA Vs. RAWEL KAUR

JUDGEMENT

(1.) Under Sub- rule 1 of Rule 3 of Order 37 Civil Procedure Code ., the defendant has to do two things within 10 days after being served with summon : (1) he must 'enter an appearance' either in person or by pleader and (2) file in court an address for service of notice 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 10 days, and, in the normal course, would be done simultaneously. Under sub-rule (3) of Rule 3 the defendant must give notice of entering appearance to the plaintiff or his counsel. This is the third thing to be done. In the instant case the defendant complied with the first requirement. He entered appearance by his counsel filing the power of attorney. However, the other two 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 The learned Judge did not agree with the argument of the counsel for the plaintiff that the defendant cannot be regarded as having entered appearance, and could not have been allowed to defend the suit.

(2.) It was further held that Sub-rule (3) of Rule 2 prohibits a defendant from defending the suit 'unless he enters an appearance'. Sub-rules (1) and (3) of Rule 3 indicates 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 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 These 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 started additionally and separately.

(3.) Ard, even supposing there is some ambiguity in the meaning of the words 'enters an appearance' in sub-rule (3) of Rule 2 they must be given a narrow and restricted meaning considering that the right of the defendant to defend the suit is at stake.