CHANDRA PRAKASH Vs. GOPALDAS

JUDGEMENT

(1.) THE plaintiff brought a suit for Rs. 28,000 under O. 37 CPC on 26th June 65 against the defendant on the basis of a promissory note dated 1st July 1959 for Rs. 21,000 executed by the defendant in favour of the plaintiff. Along with the plaint the plaintiff presented an application for attachment before judgement and other reliefs. The court passed a tentative order restraining the defendant from transferring a car and truck on 30 -6 -65, ordering notice of the order and the application to be given to the defendant. The case was again fixed on 19 -8 -65 On that day Mr. Sharma appeared for the defendant, and the learned counsel for the plaintiff filed another application. Mr. Sharma wanted time for filing objections to this application. That request was granted and the case came up for further proceedings at Jammu on 10 -11 -65. On that day Messers Sharma and Sehgal appeared for the defendant. It was ordered that the plaintiff will deliver the copies of the plaint and the application presented by the plaintiff to the learned counsel for the defendant. The suit along with the applications was ordered to be put on 18 -11 -65. On that day Mr. Sehgal appeared for the defendant. He filed some objections that day with respect to the other application file by the plaintiff. Mr. Sehgal wanted time to file his other objections. The case came up for hearing on 2 -12 -65. On that day it was pointed out by the learned counsel for the plaintiff that no application for leave to defend had been put in by the defendant and a decree should be passed against him. The parties learned counsels wanted to argue this position of the case. The case was posted to 18 -12 -65. On that day there was some controversy whether the copy of the plaint was received by the defendant or not. The defendant, however, put in an application for leave to defend the suit on 22 -12 -65. This application is unstamped but is supported by an affidavit. In this application the defendant seeks leave to defend the suit on the grounds, mentioned in para (7) of the application In para (3) of this application ,the defendant contended that he had received no notice under Q 37 r. 2 and no summons as provided in Form 4 appendix B, Civil P. C. was sent or served upon the defendant In para 4, of the same he states that the defendant had been under the impression that the written statement or other proceedings will be filed by the defendant subsequently after the service of the summons. In para (5)he states that the defendant was not aware of the stringent conditions of the said Order37 and under these circumstances did not apply for leave to defend. In para (6) he further stated that the defendant had only yesterday come to know that leave to defend had to beapplied for and hence the petitioner made this application. This is supported, by an affidavit. In the application of the plaintiff dated 29th Dec 65, the plaintiff had stated amongst .Other things that in the application of attachment before judgment notices of the application and temporary injunction were issued against, the defendant. The defendant, was duly served and after wards the, defendant, engaged Mr. L. N. ;Sharma Advocate Supreme Court as counsel and the said, counsel had been conducting the case on hehalf of the defendant Pt. Chuni Lal clerk of Mr. Sharma had received copies of the application and the plaint from the office on 12 -7 -65.The application has attached to it a certified Copy of an endorsement showing that the copy of the plaint and the. Application was handed over to Mr. Chuni Lal Clerk.

(2.) IN his objection to this application which has been wrongly described, as an application dated 24 -12 -65 the defendant states in para (3) that the record shows that the copy of the plaint had been received by Shri. ChuniLaL In para (4) he further states that the defendant had no notice that: leave to defend the suit had to be applied for neither the defendant received any intimation or summons from the court as to. The consequences of not so applying or as to the time within which such application was to be made.

(3.) THE Question before me now is whether the application for leave to defend should be considered or a decree passed forthwith in terms of O. 37 r. 2 Civil P. C. Mr. Sehgal has argued that O. 37 is a special provision of law which lays down a special procedure for suits brought under this Order. According to him it is obligatory for the court to issue summons in a particular form under this Order and that form is Form No. 4 Appendix B of Schedule 11 of the Civil P. C. The form of summons in this case requires that the defendant has to be told that a suit under O. 37 has been instituted against him by a particular person for a particular sum on the basis of a negotiable instrument; principal. .....and interest..., a copy of the negotiable instrument having been forwarded to the defendant. The defendant has further to be told that if he means to defend the suit, leave to defend has to be obtained by him within 10 days. (I may remark here that ten days is incorrect The term 10 is the result of a verbatim copying out of this provision from the Indian Civil P. C. Under the Limitation Act prevalent in the rest of India under Art. 159 (now Art. 118) the period of Limitation for filling such application is only ten days whereas in our State it is 30 days. ) The notice further has to say that if leave to defend is not sought for within the period fixed, a decree shall follow. Such notice was not served on the defendant. Mr. Sehgals argument is that as the limitation for leave to defend under the 3rd colums of Art. 159 of the Limitation Act starts from the date of the service of the summons and as no summons as provided in this rule has been served upon the defendant, his application cannot at all be barred by time. Mr. Sehgal further contended that it is a hard provision of law and it should be strictly contrued before visiting the defendant with the penal consequences for his not applying within the prescribed time for leave to defend.