CHUNNILAL Vs. VINOD KUMAR

JUDGEMENT

(1.) THIS is a revision by the defendant against order dated 2-9-1998 in M. J. C. No. 5 of 1998 by which his application under Order 37 Rule 4 C. P. C. for setting aside the decree dated 16-7-1996 in Civil Suit No. 373-B of 1995 has been rejected.

(2.) PLAINTIFF Vinod Kumar instituted a summary suit against defendant Chunnilal. The summons as required by Order 37 Rule 2 (2) C. P. C. was issued. That was served on the defendant on 11-2-1996. The defendant entered an appearance on 19-2-1996 with his counsel. On that date the Presiding Judge was on leave. The case was fixed on 27-2-1996 but it was not taken up on that date. On 4-4-1996 both parties were present. The trial Court at no stage followed the procedure prescribed by Order 37 Rule 3 (4) C. P. C. in as much as the summons for judgment was not served on the defendant in Form No. 4-A in Appendix B. Therefore, there was no occasion for the defendant to apply for leave to defend as required by Sub-rule (5) of Rule 3. The decree was passed on 16-7-1996.

(3.) AFTER hearing the learned counsel for both the sides this Court is of the opinion that non service of summons for judgment in Form No. 4-A on the defendant is a fatal defect. It is only on service of such summons that the defendant could apply for leave to defend. The use of the word "shall" in Sub-rule (4) of Rule 3 shows that the service of summons in Form No. 4-A is a mandatory requirement. In the absence of such summons the defendant could not apply for leave to defend and therefore, further procedure could not be followed.