LAWS(J&K)-1974-10-7

AHMED JOO DUNNU Vs. GOPI KISHEN ZUTSHI

Decided On October 04, 1974
Ahmed Joo Dunnu Appellant
V/S
Gopi Kishen Zutshi Respondents

JUDGEMENT

(1.) THIS is an application under Order 37 Rule 3 and Section 151 of the Code of Civil Procedure (hereinafter referred to as "The Code") read with Section 5 of the Limitation Act by Shri Gopi Nath Zutshi for leave to appear and defend summary suit No. 39 of 1971, after setting aside the decree passed therein under order 37 Rule 2(2) of the Code.

(2.) IT appears that on the institution on the original side of this court, on October 13, 1971, of the aforesaid summary suit for recovery of Rs. 880/ - on the basis of the dis -honoured post dated cheque No. PEM -577616 dated September 5, 1967, under order 37 of the Code, a summons in the prescribed form as contemplated by order 37 Rule 2(1) of the Code was ordered to be issued to the defendant (petitioner herein) by Mian Jalal -ud -Din J. Pursuant to this order a sommons was issued to the defendant but on the back thereof Shri Shiban Kishan Zutshi, the son of the defendant, reported vide endorsement Ex. DW1/1 that his father had gone out of the State on a business tour and was to remain out during the winter and that information regarding the summons would be conveyed to him on his return. On the matter being placed thereafter before the learned Judge on December 6, 1971, he was pleased to direct that fresh summons in duplicate be issued and a copy thereof be affixed on the outer door of the house of the defendant. Pursuant to this direction summons in duplicate was issued on December 8, 1971. On the process serverâ„¢s going to the house of the defendant with the summons endorsement Ex. PW 3/1 to the following effect was made on one of the copies thereof by Shri Shiban Kishen Zutshi, the son of the defendant on January 2, 1972.

(3.) THE other copy of the summons was affixed by the process server on the outer door of the house of the defendant on the same date i.e. January 2, 1972, as directed by the learned Judge. Despite this service the defendant failed to make an application for leave to appear and defend the suit which was accordingly decreed by me under Order 37 Rule 2 (2) of the Code on May 12, 1972.