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Madhya Pradesh High Court · body

1998 DIGILAW 481 (MP)

Laxmikant Jethi v. Ashok Kumar Mukherjee

1998-07-13

S.C.PANDEY

body1998
JUDGMENT The non-applicant - plaintiff filed a civil suit for recovery of Rs. 70,372/- (Rupees Seventy Thousand Three Hundred Seventy Two) against the applicant - defendant. The suit was based on a promissory note. It appears that this amount included an interest accrued prior to filing of the suit. The principal sum was Rs. 6,248/- (Rupees Six Thousand Two Hundred Forty Eight) and, therefore, the non-applicant claimed interest at the rate of Rs. 2/- (Rupees Two) per month from the date of institution of suit till realisation. The trial Court, in exercise of its power under Order 37 Rule 2(2) of the CPC, issued summons to the applicant in Form No. 4 Appendix B. The applicant was served on 4.10.1997 and he was required to appear as per Order 37 Rule 2(3) of the CPC within ten days. The summons served on the applicant showed that the date fixed was 22.10.1997. However, in the text of the summons, it was mentioned that the applicant was required to appear before the trial Court within ten days of service of summons. The applicant did not appear within ten days i.e. on 14.10.1997. He appeared on 22.10.1997. Thereafter, it appears that he filed an application on 21.11.1997 purporting to be under Section 151 of the CPC. The reason given for non-appearance within ten days was to the effect that the appellant had given the summons to his Advocate and the Advocate could not appear between 5.10.1997 to 21.10.1997 because his relative had died during this period. It was stated that on 22.10.1997, the applicant had entered appearance and had filed a registered address and for this reason the applicant claimed indulgence of the Court for condoning the delay. This application should have been made under order 37 Rule 3(7) of the CPC. The application was resisted by the non-applicant. The trial Court has dismissed the application by the impugned order dated 19.12.1997. Learned counsel for the applicant argued that the applicant had not been served with summons for judgment in Form No. 4 of Appendix B as per Sub- Rule (4) of Rule 3 and, therefore, no decree can be passed against the applicant. The trial Court has dismissed the application by the impugned order dated 19.12.1997. Learned counsel for the applicant argued that the applicant had not been served with summons for judgment in Form No. 4 of Appendix B as per Sub- Rule (4) of Rule 3 and, therefore, no decree can be passed against the applicant. Learned counsel for the applicant further argued that the appearance of the applicant on 22.10.1997 should be deemed to be the proper in appearance and it should be held that there was sufficient compliance of Order 37 Rule 2(3) of the Code of Civil Procedure. The scheme of Order 37 Rule 2 of the CPC is very clear. When a suit, mentioned in Order 37 Rule 1 of the CPC, is instituted, then the provisions of Sub-Rule (2) would be attracted and the summons have to be issued to the defendant - applicant in Form No. 4 of Appendix B or in such other form as may be prescribed from time to time. In the form, it is mentioned specifically that the defendant - applicant is required to appear within ten days of service of summons. The idea behind Sub-Rule (2) of Rule 2 of Order 37 of the CPC is that the defendant- applicant shall make an early appearance before the Court so that the matter is not delayed. The language of Sub-Rule (3) of Rule 2 of order 37 of the CPC has been made very drastic after the amendment in the CPC by Act of 1977 with effect from 1.2.1997. It says that in case, the defendant does not comply with the summons in Form No. 4 of Appendix B by entering in appearance, the defendant shall not be entitled to defend the suit and it is further provided that in default of entering in appearance allegations made in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to decree for any sum not exceeding the sum mentioned in the summons together with interest at the fixed rate, if any, upto the date of decree from time to time by rules made in this behalf forthwith. It appears that there is mis-giving about the Sub-Rule (3) of Rule 2 of the Order 37 of the CPC among the litigating public as well as Lawyers and the Judges who conduct the cases under Order 37. It appears that there is mis-giving about the Sub-Rule (3) of Rule 2 of the Order 37 of the CPC among the litigating public as well as Lawyers and the Judges who conduct the cases under Order 37. The Sub-Rule (3) read with Rule 2 of Order 37 of the CPC is a complete Code in itself and it requires that the defendant must appear within ten days of service of summons upon him in Form No. 4 of Appendix B or in other form which may be prescribed. In such a case, it would be advisable that the trial Judge should also fix the date for appearance of the defendant. However, it has been found that the trial Court often does not fix the same date as the date of hearing. The date of hearing is extended and usually the date of hearing is also mentioned in the summons. Ordinary litigants are, therefore, misled into thinking that they are required to appear on the date fixed by the Court and not on the date mentioned in the text of summons. However, the effect of Sub-Rule (3) of Rule 2 6f Order 37 of the CPC is mandatory and drastic because it has been provided that in the event of not entering appearance the contents made in the plaint shall be deemed to be admitted and the decree shall immediately follow. There is only one escape to a defendant who does not appear on the date fixed for entering his appearance. That has been provided in Sub-Rule (7) of Rule 3 of Order 37 of the CPC, i.e., if he does not appear on that date he can file an application for condonation of delay showing sufficient cause for not entering in the appearance on the date fixed in the summons. There is no other remedy given to the defendant in Order 37 prior to decree in the suit. The Sub-Rule (3) of Rule 2 of Order 37 6fthe CPC has used the words ''enter appearance". In the opinion of this Court, these words mean that the defendant should appear before the Court and get his appearance recorded. If this is not done, the consequence mentioned in Sub-Rules (3) of Rule 2 of Order 37 of the CPC shall follow, provided delay in entering in appearance is not condoned under Order 37 Rule 3(7) of the CPC. If this is not done, the consequence mentioned in Sub-Rules (3) of Rule 2 of Order 37 of the CPC shall follow, provided delay in entering in appearance is not condoned under Order 37 Rule 3(7) of the CPC. In this case, the application of the applicant has been rejected by the trial Court. The trial Court has disbelieved the applicant on the ground that he has not placed sufficient material on record for sustaining his plea on the ground mentioned in the application, Annexure A-4. The applicant has not stated in his application anywhere in what circumstances, he was not advised to make his appearance and get an entry thereof before the concerned Judge. All that is said is that he had given summons to his counsel and the counsel was not appearing in the Court between the period 5.10.1997 to 21.10.1997 on account of death of his relative. Nothing has been said in the application, how the summons in Form No. 4 of Appendix B were dealt with by his counsel and what was the advice received by him. It is not the case of the applicant when he went to the counsel's office and his counsel was not present in the office. Nor it is the case of the applicant that his Advocate did not look into the summons as he was in hurry to go away on 5.10.1997. Therefore, the conclusion of the trial Court appears to be correct. In any case, this Court has no jurisdiction to interfere with the finding of fact recorded by the trial Court. The result of the aforesaid discussion is that this revision fails and is hereby dismissed. No costs.