UNION OF INDIA Vs. CREATIVE SOFTWARE PRIVATE LIMITED

JUDGEMENT

(1.) What happens when, within ten days of service of summons issued in a suit under Order 37 in Form IV, Appendix B of the Code of Civil Procedure, the defendant appears in court and files not only the Vakaltnama but an application for leave to appear and defend as well? Would that amount to putting the appearance? No! says the learned trial Judge. Is she right? This is the question posed in this revision petition.

(2.) Let us first have a look at the broad outline of the procedure to be followed in a suit instituted under order 37. It is: On institution of a suit under order 37 a summons is issued under Rule 2(2) to the defendant in Form 4 of Appendix B. Rule 2(3) provides that a defendant shall not defend the suit "unless he enters appearance" either in person or by pleader and that too within ten days of his service. The sub-rule (3) provides that on the day of entering the appearance, "notice of such appearance shall be given by the defendant to the plaintiffs pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a prepaid letter directed to the address of the plaintiffs pleader or of the plaintiff, as the case may be." Once the defendant has entered appearance, sub-rule 4 requires the plaintiff to obtain from the court and serve on the defendant a summons for judgment in Form 4A prescribed in Appendix B returnable not less than 10 days from the date of its service. Within ten days of the service of summons for judgment, the defendant is required to apply for leave to defend the suit. If he fails to so apply, decree would follow. However, if he does apply, the court may grant or refuse leave to defend. In case of refusal too, judgment would follow.

(3.) In the present case, within ten days of service of summons under Rule 2 in Form No.4 in Appendix B, the defendant moved an application for leave to defend. It is not disputed that on the day the said application was moved the counsel for the plaintiff was present in court and had in fact been delivered a copy of the said application. It is further not disputed that alongwith the said application for leave to defend was filed the power of attorney of the counsel for the defendant duly signed by the defendant and that it contained the lawyer's address. The learned Additional District Judge, however, did not treat it as "entering the appearance" on the ground that the procedure laid down in sub-rule (3) had not been followed. She thus passed a decree in favour of the plaintiff.