NAINMAL Vs. MAGANMAL

JUDGEMENT

(1.) This is a defendant-appellant's first appeal against the judgment and decree dated 12.12.1986 passed by the learned District Judge, Sirohi, by which he decreed the suit of the plaintiff-respondent filed under Order 37, Rule 2, CPC for Rs. 10,584.20 and also awarded interest @ 6% p.a. on the principal amount of Rs. 7297/- from the date of suit i.e. 7.11.1983 till realization of amount.

(2.) It arises in the following circumstances : The plaintiff respondent filed a suit in the Trial Court on 7.11.1983 under Order 37, Rule 2 CPC alleging that on 8.11.1980., defendant-appellant, after understanding his old accounts, executed a khata Ex. 1 in favour of the plaintiff respondent for Rs. 7297/- and further agreed to pay interest. Since the defendant-appellant has not paid the amount mentioned in the khata Ex. 1, the plaintiff-respondent filed the present suit. After presentation of the plaint, a summon under Order 37, Rule 2, CPC was issued to the defendant-appellant and as per ordersheet of the Trial Court and as per the summon which was issued on 5.2.1985, it appears that this summon was served on the defendant-appellant personally on 6./5.1985. Since the summon which was served on the defendant-appellant on 6.5.1985 was not returned back by the concerned process server, the order-sheets of the Court proceedings show that it was ordered again and again that on presentation of process fee etc., summon be issued again to the defendant-appellant. From the order-sheet of the Trial Court dated 17.10.1985, it appears that on 3.9.1985, counsel for the defendant-appellant made an application before the Court stating that the summon which was issued under Order 37, Rule 2, CPC has been served on the defendant-appellant and within ten days of the service of summon, the defendant-appellant has put in apperance. But, this fact was brought to the knowledge of the Court when the order- sheet dated 17.10.1985 was being written and thereafter, counsel for the plaintiffs-respondent made a prayer before the Court that since defendant-appellant was served on 6.5.1985 and he has made appearance on 3.9.1985, which is time barred. Note:- This point was reserved to be decided later on by the Trial Court. As per order-sheet of the Trial Court dated 1.3.1986, it appears that counsel for the defendant-appellant pleaded no instruction and, thereafter, ex-parte proceedings were ordered against the defendant-appellant and after recording the statement of PW1, the suit of the plaintiff-respondent was decreed against the defendant-appellant for Rs. 10,584,20 and interest @ 6% p.a. was also awarded on the principal amount of Rs. 7297/- from the date of suit i.e. 7.11.1983 till the date of realization of amount, by the learned District Judge, Sirohi vide his judgment and decree dated 12.12.1986. Aggrieved from the said judgment and decree dated 12.12.1986 passed by the learned District Judge, Sirohi, the defendant- appellant has preferred this first appeal before this Court on 28.1.1987.

(3.) In this first appeal, the following points have been raised by the learned counsel for the defendant-appellant: (i) That though the service of summon issued on 5/6.2.1985 was effected on defendant-appellant on 6-5-1985, the cognizance of that service be not taken, as before 6-5- 1985, it was ordered again and again in the order-sheets of the Trial Court that fresh summon be issued against the defendant-appellant. Therefore, no effective and legal service has been made on the defendant-appellant on 6.5.1985. (ii) That summon which was issued on 20.8.1985 was served on the defendant-appellant and that is why, the defendant-appellant has made appearance through his counsel on 3.9.1985 i.e. within ten days from the date of service of. summon. (iii) That no compliance of Rule 3(4) of Order 37, CPC has been made by the Trial Court, as the summon for judgment in form 4-A returnable not less than ten days from the date of service, has not been issued. Hence, the Trial Court has not followed the procedure as provided under'Order 37, Rule 3(4), CPC, therefore, the whole proceedings conducted by the Trial Court are without jurisdiction and thus, impugned judgment and decree should be set aside.