PICKY SHARMA Vs. BHAGWATI DEVI

JUDGEMENT

(1.) This petition raises an interesting question as to the procedure which a Civil Court has to follow in cases governed by Order XXXVII of the Code of Civil Procedure.

(2.) The facts necessary for disposal of the petition are that the Petitioner (hereinafter referred to as the 'Plaintiff') filed a suit for recovery of Rs. 4,25,000/- under Order XXXVII, Code of Civil Procedure. Thereafter, notice of this suit was issued on 27.7.2010 and while issuing notice, the learned Trial Court specifically directed that the Defendant be served by way of notice mentioned in Appendix B Form No. 4, Code of Civil procedure. This is the form prescribed for service of notice under Order XXXVII. The Defendant was served and moved an application on 23.8.2010 under Order XXXVII Sub-rule (3), Rule 5, Code of Civil Procedure for leave to defend the suit. The Plaintiff filed an application under Order XXXVII, Rule 3, Sub-rule (4), Code of Civil Procedure for permission to serve the summons for judgment upon the Defendant. This application was filed on 28.8.2010 and was accompanied by an affidavit.

(3.) It appears that the case was fixed for 23.8.2010 when the Presiding Officer was on leave. Though power of attorney and application for leave to defend had been filed on behalf of the Defendant, on 28.8.2010 none appeared for the Defendant and the learned Trial Court directed that notice under Order XXXVII Rule 2 be issued to the Defendant returnable for 19.10.2010. On the application filed for serving summons of judgment, it was directed that the same would also be considered on the same date, i.e., 19.10.2010. On 19.10.2010, the learned Trial Court directed the Defendant to file reply to the application under Order XXXVII Rule 3, Code of Civil Procedure and adjourned the matter to 18.11.2010. On 18.11.2010, the learned Trial Court recorded that the Defendant had already filed an application for leave to defend the suit on 23.8.2010 and directed that the case be fixed for 8.12.2010 for filing of written statement.