SHIVAM ENTERPRISES Vs. CREATION POINT

JUDGEMENT

(1.) Ia 3408/2013 (u/S 5 of Limitation Act), IA 3407/2013 (u/O 37 Rule 4 CPC for putting in appearance) & IA 3421/2013 (under Order 37 Rule 7 read with Order 9 Rule 13 read with Section 151 CPC seeking setting aside of ex parte decree dated 7.12.2012

(2.) The plaintiff has filed a suit for recovery under Order 37 CPC, which came to be decreed under Order 37 Rule 2(3) CPC on 7.12.2012 on account of the defendant having failed to file appearance. The plaintiff has contested these applications. It is averred by the defendant that though he was served of the summons in the suit on 16.10.2012, but he could not enter appearance for being busy in attending his ailing mother, who was hospitalized with effect from 13.08.2012 to 20.08.2012 and again, on 31.10.2012 and 22.11.2012; and ultimately, expired on 29.11.2012. It is averred that the defendant had left the summons in his factory, and thereafter, lost track of the same on account of continuous illness of his mother, and it was only in the first week of January, 2013 that he found the papers and thereafter, contacted his counsel. It was only on 13.01.2013 that he learnt from the website of the High Court about the ex parte decree passed on 7.12.2012. It is thus prayed that his not filing appearance within the ten days of the receipt of summons was not intentional or willful, but, for the reasons beyond his control. Simultaneously, the defendant has sought to put in appearance as contemplated under Order 37 (2) CPC. For all these reasons, the condonation of delay in filing the appearance is sought.

(3.) Having heard the learned counsel for the parties, it is noted that the undisputed position is that the defendant was served of the summons on 16.10.2012, and as per the provisions contained under Order 37 (2) CPC, the defendant was to enter appearance either in person or by a pleader within ten days of service. As per Order 37(3)(1) CPC, along with the appearance, he was also required to file address for service of notices. Further, as per Sub-Rule 3 thereof, on the day of entering appearance, notice of such appearance was also required to be given to the plaintiff in person or his counsel, as the case may be. Admittedly, the defendant had not entered appearance in the manner as contemplated by these provisions. Further, as per Rule 2 Sub-Rule 3 of Order 37 CPC, the defendant could not defend the suit unless he entered appearance and in default of his appearance, the allegations contained in the plaint are deemed to be admitted and the plaintiff entitled to a decree for a sum not exceeding the sum specified in the summons, together with the interest, at the specified rate, if any.