AGGARWAL INDUSTRIES Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) BY this order, I propose to dispose of Civil Revisions No. 1358 and 2078 of 1987. Both these revision petitions are directed against the order of the trial Court vide which application of the defendants for leave to defend the suit was dismissed.

(2.) IN brief, the facts are that respondent Punjab National Bank filed a suit against the revision petitioners and other defendants under Order 37 of the Code of Civil Procedure. The suit was filed on 14. 3. 1985 when the same was registered and notice was ordered to be issued to the defendants for 7. 5. 1985. Defendants No. 1 to 5 were served on 26. 3. 1985. On 20. 4. 1985, defendants No. 1 to 3 and 5 through their counsel put in appearance. From 20. 4. 1985, the case was adjourned to various dates and it was only on 5. 3. 1986 that the Court ordered that notice of the judgment be served on the defendants. On 19. 3. 1986, in pursuance of order of the trial Court, summons for judgment were served on the defendants who on 29. 3. 1986 made an application to the Court disclosing such facts which would entitle them to leave to defend the suit. Their application on contest was dismissed solely on the ground that the defendants had failed to put in appearance within 10 days from the date of service. This order of the trial Court is being impugned in the present revision petitions.

(3.) HAVING heard the learned counsel for the parties at some length, I am of the view that the revision petitions deserve to succeed. Rule 3 of Order 37 of the Code of Civil Procedure lays down the procedure for appearance of the defendant in summary suit. According to Rule 3 of Order 37 of the Code of Civil Procedure, the plaintiff has to serve on the defendant along with summons under Rule 2, a copy of the plaint and annexures thereto. On service of summons, the defendant has to put in appearance within 10 days from (he dale of service. Defendant can put in appearance either in person or through his Pleader and, in either case, he has to file in Court an address for service of notice on him. He has to give a notice of his appearance to the plaintiff's pleader or if the plaintiff sues in person, to the plaintiff himself. Thereafter, the plaintiff is to serve on the defendant a summons for judgment in Form No. 4-A in Appendix B returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. On service of summons for judgment, the defendant by an affidavit has to apply to the Court disclosing such facts as may be deemed sufficient to entitle him to defend the suit. The Court, on consideration, may grant the defendant the leave to defend, unconditionally or upon such terms as may appear to the Court to be just. Normally the leave to defend is not to be 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. In the present case, the defendants were served on 26. 3. 1985. They were required to put in appearance within 10 days. They, however, did not put in appearance within 10 days but it was on 20. 4. 1985, they put in appearance through their counsel. In application dated 20. 4. 1985, the defendants stated to the following:1. That in the above noted case, the defendants have received copy of the plaint and copies of the documents without any summons and the defendants are putting in their appearance today in this case. 2. That the address of the defendants for service of summons for judgment is as under: C/ o R. K. Mittal, Advocate, Kothi No. 1526 Sector 18-D, Chandigarh. It is, therefore, respectfully prayed that the appearance of the defendants be recorded. Despite the receipt of the above application, no action whatsoever was taken either by the plaintiff or by the Court to proceed with to decide the suit forthwith on the ground that the defendants had not put in appearance within 10 days as required under Rule 3 of Order 37 of the Code of Civil Procedure. As a matter of fact, the zimni orders reveal that on 5. 3. 1986, summon for judgment were ordered to be served for 19. 3. 1986. Order dated 19. 3. 1986 further reveals that notice for judgment was served and the Court adjourned the case to 29. 3. 1986 for filing of the application for leave to defend and reply to that application. On receipt of the application for leave to defend, reply was sought from the plaintiff and after reply, leave to defend was refused solely on the ground that the defendants had not put in appearance within 10 days. This order of the trial Court cannot be maintained for the reason that on 20. 4. 1985, when the defendants had put in appearance, they had stated in their application that they bad not received any summons and in the absence of summons, they were not aware as to whether and suit was filed under Order 37 of the Code of Civil Procedure. Otherwise too, the Court did not make any enquiry as to whether summons were served on the defendants, but directed the plaintiff to serve summons for judgment which was a stage subsequent to the putting in appearance. The Court having directed to serve summons for judgment on the defendants and oh service asked the defendants to apply for leave to defend, it was thereafter not open to the Court to refuse to decide the application on the ground that the defendants had not put in appearance within 10 days. At that stage, the Court ought to have decided the application on merits because leave cannot be refused when no summons, necessary under Order 37, was ever served on the defendants. Defendants at the time of first appearance had denied the receipt of summons which matter was not determined by the Court. Thus, in the facts and circumstances of the case, I am of the view that the impugned order cannot be sustained.