ARADHANA TEXTILES PVT LTD Vs. VISHNU TEXTILES TRADERS

JUDGEMENT

(1.) Plaintiff-petitioner being aggrieved with the order dated, 25th April 1989 has preferred this revision petition before this Court. Plaintiff-petitioner instituted a suit on the basis of the Hundi said to have been executed by the non-petitioners in his favour.

(2.) Notice was issued to the defendants under O.37 R. 2 for appearance in the Court. Notice was served on all the three defendants. Ddefendant No. 2 appeared in person and all defendants were represented by Advocate, Shri Nand Kishore. Rule-2 is only enabling provision in favour of the petitioner plaintiff, which provides that the plaintiff may invoke the provisions of O.37 for the purpose of invoking the summary character of the suit. It is an admitted position that Mr. Nand Kishore, Advocate represented all the three defendants. Application was moved by the plaintiff on 4-9-87 for the issuance of the summons under O. 37 R. 3 sub-rule (4). Summons were issued under sub-rule (4) of R. 3 of O.47 in form-IV A. One of the defendants, Surendra Prakash was present in the court, as such, summons was served to him in person through his Advocate, Nand Kishore. Non-petitioner No. 1 is a partnership firm and non-petitioner No.3 is one of the partners. Mr. Nand Kishore might have suggested to the Court that though, he is representing non-petitioners Nos. 1 and 3, even then notice may be issued to defendant in person. Suggestions were accepted and the summons were despatched. Summonses in Form No. 4A were served by registered post on 18th March 1988. It was submitted by the non-petitioners that summons were not served before the trial court as such, the inquiry was made and post Office reported that acknowledgment receipt is missing. Summonses were served on 18-2-88. Inquiry report was made available to the Court before 28th July 1988. On 28th July 1988, the Court passed the order that the registered notices which were sent under Form No. 4A have been served to respondents Nos. 1 to 3 as per. report of the Post Office. The case maybe listed on 12th September 1988. This order was passed in the presence of the Advocate for both the parties. On 12-9-88 the Presiding Officer was not present, as such, the case was adjourned to 26th October 1988. On 26-10-88 the application for leave to appeal was submitted on behalf of the defendants before the Court. However, no application for the condonation of the delay was submitted. On 26th November 1988 application for the condonation of delay was submitted by the defendants. It was submitted therein that he got the information from his Advocate about the submission of the application under sub-r. (5) of R.3 of O.37. On 25th November, as such, he has submitted the application and prayed that the delay from 26-10-88 to 26-11-88 may be condoned. In support of the said application affidavit of Surendra Prakash, defendant No. 2 was also filed. It will not be out of place here to mention that Surendra Prakash submitted one application on 7-10-87 under R.5 of O.37 C. P. C. He prayed therein that the plaintiff may be directed to produce the original documents and, in case, the prayer is not accepted the suit may be tried as regular suit.

(3.) Heard learned Counsel for the parties. R.3 of O.37 lays down the procedure in summary suit. In a summary suit the plaintiff has to serve on the defendant along with summons under R.2, a copy of the plaint and annexures thereto. After the service the defendant may enter appearance by person or by his pleader on any date on such service. There is no particular form prescribed for entering appearance. When the defendant puts appearance, under R. 2 the plaintiff has to serve thereafter a summons for judgment in Form No. 4A in Appendix-B, returnable not less than 10 days from the date of service. In the instant case, it is an admitted position that the defendants put appearance under R. 2 and, thereafter, the application was moved for the service of summons for judgment in form No. 4A.