LAXMIKANT JETHI Vs. ASHOK KUMAR MUKHERJEE

JUDGEMENT

(1.) THE non -applicant - plaintiff filed a civil suit for recovery of Rs. 70,372/ - (Rupees Seventy Thousand Three Hundred Seventy Two) against the applicant - defendant. The suit was based on a promissory note. It appears that this amount included an interest accrued prior to filing of the suit. The principal sum was Rs. 6,248/ - (Rupees Six Thousand Two Hundred Forty Eight) and, therefore, the non -applicant claimed interest at the rate of Rs. 2/ - (Rupees Two) per month from the date of institution of suit till realisation. The trial Court, in exercise of its power under Order 37 Rule 2(2) of the CPC, issued summons to the applicant in Form No. 4 Appendix B. The applicant was served on 4.10.1997 and he was required to appear as per Order 37 Rule 2(3) of the CPC within ten days. The summons served on the applicant showed that the date fixed was 22.10.1997. However, in the text of the summons, it was mentioned that the applicant was required to appear before the trial Court within ten days of service of summons. The applicant did not appear within ten days i.e. on 14.10.1997. He appeared on 22.10.1997. Thereafter, it appears that he filed an application on 21.11.1997 purporting to be under Section 151 of the CPC. The reason given for non -appearance within ten days was to the effect that the appellant had given the summons to his Advocate and the Advocate could not appear between 5.10.1997 to 21.10.1997 because his relative had died during this period. It was stated that on 22.10.1997, the applicant had entered appearance and had filed a registered address and for this reason the applicant claimed indulgence of the Court for condoning the delay. This application should have been made under order 37 Rule 3(7) of the CPC. The application was resisted by the non -applicant. The trial Court has dismissed the application by the impugned order dated 19.12.1997.

(2.) LEARNED counsel for the applicant argued that the applicant had not been served with summons for judgment in Form No. 4 of Appendix B as per Sub - Rule (4) of Rule 3 and, therefore, no decree can be passed against the applicant. Learned counsel for the applicant further argued that the appearance of the applicant on 22.10.1997 should be deemed to be the proper in appearance and it should be held that there was sufficient compliance of Order 37 Rule 2(3) of the Code of Civil Procedure.

(3.) THE Sub -Rule (3) of Rule 2 of Order 37 6fthe CPC has used the words ''enter appearance". In the opinion of this Court, these words mean that the defendant should appear before the Court and get his appearance recorded. If this is not done, the consequence mentioned in Sub -Rules (3) of Rule 2 of Order 37 of the CPC shall follow, provided delay in entering in appearance is not condoned under Order 37 Rule 3(7) of the CPC. In this case, the application of the applicant has been rejected by the trial Court. The trial Court has disbelieved the applicant on the ground that he has not placed sufficient material on record for sustaining his plea on the ground mentioned in the application, Annexure A -4. The applicant has not stated in his application anywhere in what circumstances, he was not advised to make his appearance and get an entry thereof before the concerned Judge. All that is said is that he had given summons to his counsel and the counsel was not appearing in the Court between the period 5.10.1997 to 21.10.1997 on account of death of his relative. Nothing has been said in the application, how the summons in Form No. 4 of Appendix B were dealt with by his counsel and what was the advice received by him. It is not the case of the applicant when he went to the counsel's office and his counsel was not present in the office. Nor it is the case of the applicant that his Advocate did not look into the summons as he was in hurry to go away on 5.10.1997. Therefore, the conclusion of the trial Court appears to be correct. In any case, this Court has no jurisdiction to interfere with the finding of fact recorded by the trial Court. The result of the aforesaid discussion is that this revision fails and is hereby dismissed. No costs.