SUKHDEV KUMAR Vs. NASIM ANSARI

JUDGEMENT

(1.) This revision petition is directed against an order of the Commercial Sub Judge, Delhi dated 6-3-1978. The defendants are the petitioners. The plaintiff had filed a suit against the present petitioners for the recovery of a sum of Rs. 23210.00 based on a Hundi drawn by the plaintiff for a sum of Rs. 19,668,90in respect of goods, despatched to the defendants, the said hundi having been dishonoured when presented for payment on 30-12-1973. The suit was filed under the provisions of Order VII of the Code of Civil, Procedure amended by Act 104 of 1976 w.e.f 1-2-1977.

(2.) It will be convenient at the outset to give a broad outline of the procedure to be followed according to the amended provisions : (a) When a suit is presented under this Order, a summons is issued under Rule 2(2) to the defendant in Form No. 4 of Appendix B. Rule 2(3) provides that a defendant shall not defend the suit "unless he enters appearance." In default of his entering an appearance, the allegations in the plaint will be deemed to be admitted and the plaintiff would be entitled to decree forthwith. (b) Rule 3 sets cut the "procedure for the appearance of defendant." It provides that, along with the summons under rule 2, the plaintiff should serve on the defendant a copy of the plaint and the annexures thereto. Thereupon the defendant may at any time within ten days of such service enter appearance either in person or by pleader. The rule requires that, in either case, he should file in court an address for service of notices on him. The effect of this is that once this is done, in the absence of any specific orders of court, all summons, notices and other judicial processes shall be deemed to have been duly on the defendant if they are left at the address given by him for such service. (e) Another obligation is laid on the defendant by sub-rule 3 of this rule. On the day of entering 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 plantiff himself) either by notice delivered at or Sent by a prepaid letter directed to the address of the plaintiff's pleader (or of the plaintiff, as the case may be). (d) 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 No. 4A prescribed in Appendix B. This summons shall be made returnable not less than ten days from the date of its service. This summons according to the sub-rule, should be supported by an affidavit verifying the cause of action and the amount claimed and stating that in the plaintiff's belief there is no defence to the suit. (e) The defendant, within ten days from the service of such summons for judgment, should apply to the court for leave to defend a suit, disclosing by way of affidavit or otherwise such facts as may be deemed sufficient to entitle him to defend the same. The court may grant such leave either unconditionally or upon such terms as the court may deem just Leave to defend shall not be however 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.

(3.) In the present case, the plaint was filed on 3.1.1977. It appears that the plaintiff was unable to serve the summons under rule 2 on the defendants in the ordinary way. Eventually he was given permission to serve the defendant under Order V, Rule 20 and notice of the summons was published in the Indian Express on 3-11-1977. The summons having been served by way of substituted service, a copy of the plaint and its annexures did not accompany the summons. (These were handed over to the counsel for the defendant only on 24.11.77). Soon after the summons was published, Shri S.P. Kalra, Advocate, filed "an application on behalf of defendants 1 to 4 for entering appearance in this case and for supply of copy of the plaint." The application stated that the defendants I to 4 "hereby enter appearance in this case" in pursuance of the notice published in the paper. It also requested that the defendants be supplied with a copy of the plaint and its annexures. Accompaning the application was a power of attorney signed by the defendants in favour of Sri S.P. Kalra, Advocate, which set out the address of the Advocate. The defendants or their counsel did not, however, comply with the provisions of sub-rule 3 or rule 3. They did not give the notice of their appearance to the plaintiff or his pleader, as required by that sub-rule.