ESKAY ENTERPRISES Vs. SURESH P HINDUJA

JUDGEMENT

(1.) THIS motion is taken out by the defendant for setting aside the exparte decree passed against him on 28th August, 2001 in Summary Suit No. 129 of 2001. The plaintiff opposes the motion.

(2.) THE case of the defendant is that after service of the summons he had engaged an Advocate and instructed him to do the needful. The defendant bonafide believed that the Advocate would file appearance in Court and would do the needful for defending the suit. However, the Advocate did not file an appearance and therefore an exparte decree was passed. The defendant should not be penalised for the negligence of the Advocate, says his learned Counsel. After controverting these facts, learned Counsel for the plaintiff submits that assuming all averments to be true the ex parte decree cannot be set aside because no special circumstances have been made out as required under order 37, Rule 4 of the Code of Civil Procedure. Reliance is placed on the decision of the Supreme Court rendered in (Rajnikumar v. Sureshkumar malhotra), reported in A. I. R. 2003 S. C. 1322.

(3.) THE procedure for trial of a summary suit prescribed in Order 37 of the code of Civil Procedure is materially different than the procedure for trial of a suit instituted in a Court exercising Ordinary Original Civil Jurisdiction. In case of an ordinary suit the defendant appears on the date fixed for his appearance in summons and thereafter he is entitled to defend the suit as of right. He need not seek leave of the Court for defending the suit or filing of a written statement of his defence. In case of a summary suit the defendant is required to file an appearance either in person or by a pleader, within 10 days of service of the writ of summons on him and file the address for service of notices on him. On failure of the defendant to enter an appearance within 10 days of the service of the writ of summons, the plaintiff is entitled to a decree for a sum not exceeding the sum mentioned in the summons together with interest at the rate specified, if any and the costs. This is provided in sub rule (3) of Rule 2 of Order 37 of the Code of Civil Procedure. If the defendant enters an appearance as above, the plaintiff is required to serve on the defendant the summons for judgment in the prescribed form. Within 10 days of the service of summons for judgment the defendant may apply for leave to defend the suit. Leave to defend would ordinarily be granted on the defendant, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend. Leave to defend may be granted to the defendant either unconditionally or conditionally on such terms as the Court may deem fit. Normally, the Court will not refuse leave unless the Court is satisfied that the facts disclosed by the defendants do not indicate a substantial defence or that the defence intended to be set up is frivolous or vexatious. The difference between the procedure of a ordinary suit and of a summary suit is that in the former the defendant requires no leave of the Court to defend the suit and he is entitled to defend it as of right while in case of the latter the defendant is required to apply for leave to defend within ten days of the service of the summons for judgment. In a summary suit the defendant has no right to defend per se unless leave is granted to him by the Court to defend the suit. If the leave to defend is refused or if conditional leave is granted subject to his giving of a security and the defendant fails to give security within the time specified by the Court, the plaintiff is entitled to ajudgment forthwith. If leave to defend is granted thereafter the procedure for trial of a summary suit would be the same as that of a civil suit instituted in ordinary courts exercising ordinary Original Civil Jurisdiction only until the leave is granted the procedure is different.