FIRE PROTECTION SYSTEMS Vs. PANJAK CHAMPAKLAL GANDHI

JUDGEMENT

(1.) This appeal is directed against the order of the learned single Judge, dated 9-1-2003, passed in Notice of Motion No.3568 of 2002 in Summons for Judgment No.831 of 2002 in Summary Suit No.1443 of 2002. The appellant is the original plaintiff and the summary suit has been filed against the respondent-defendant for getting decree of Rs.5,00,000/-. The said suit is filed as a summary suit under Order 37 of the Code of Civil Procedure (for the sake of brevity, hereinafer called as "the CPC"). In the aforestated said suit, the learned single Judge passed a decree on 10-12-2002 on the ground that the defendant failed to seek leave to defend the suit and, therefore, the decree was passed in view of failure on the part of the defendant to submit an application for leave to defend the suit. The present respondent thereafter moved an application under Order 37, Rule 4 of the CPC for setting aside the said decree on the ground that he was prevented by sufficient reasons from appearing in the suit and that in view of the special facts and circumstances of the case, the decree is required to be set aside under the provisions of Order 37, Rule 4 of the CPC. The said application was resisted by the present appellant on the ground that the defendant has failed to make out any case for submitting the application for leave to defend the suit as well as on the ground that no circumstances exist, much less special circumstances exist to set aside the decree under Order 37, Rule 4 of the CPC. Before the learned single Judge, a submission was made on behalf of the defendant that the summons for judgment was wrongly served on Advocate Shri K.R. Dhanuka as he was not authorised to accept the summons for judgment. The case of the defendant before the learned single Judge was that simply because Shri Dhanuka was appearing for the defendant in other proceedings is no ground for service of summons on him in the present suit as in the present suit the defendant had not engaged him and, therefore, he was not entitled to accept the application for summons for judgment. The learned single Judge, after hearing the Advocates for both the sides and after going through the proceedings of the case, allowed the said application and restored the suit to the file by setting aside the ex parte decree by holding that the defendant was not properly served upon and the service on the Advocate Shri Dhanuka cannot be said to be a valid service as per law. While deciding the said application, the learned single Judge has also came to the conclusion that the suit of the plaintiff is prima facie time barred and the Court may not have territorial jurisdiction to adjudicate the dispute. On the aforesaid grounds, the application submitted by the respondent was allowed by the learned single Judge. The aforesaid order of the learned single Judge is impugned at the instance of the original plaintiff by way of this appeal.

(2.) Learned counsel for the appellant submitted that by the conduct of the defendant it could have been inferred by the learned single Judge that he was legally served and, therefore, on the ground of failure to serve the application for leave to defend, the decree could not have been set aside. Learned counsel appearing for the appellant submitted that since Shri Dhanuka was appearing in the other proceedings, the service of the summons for judgment on the said Advocate could have been treated to be a valid service and it was not obligatory on the part of the plaintiffs to serve the defendant again. Learned counsel appearing for the appellant also submitted that the Court at Bombay was having territorial jurisdiction to decide the dispute and that the learned single Judge has committed error in holding that the Court at Bombay may not have territorial jurisdiction to entertain the suit. Learned counsel appearing for the appellant further submitted that earlier the suit was filed within the limitation period and the same was ultimately withdrawn in order to file the present suit and, therefore, it cannot be said that the suit is filed beyond the period of limitation, and that the suit was filed within the period of limitation.

(3.) On the said ground, the respondent, who is appearing as party in person, submitted that since there was no valid service of summons for judgment on him, he was prevented from appearing in the suit and, therefore, he has made out a special case for setting aside the decree passed under Order 37, Rule 4 of the CPC. He further submitted that prima facie the findings arrived at by the learned single Judge regarding territorial jurisdiction as well as regarding the limitation is correct and, therefore, the order of the learned single Judge requires no interference at our hands in this appeal.