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2005 DIGILAW 2488 (RAJ)

Mehboob v. Ladu

2005-09-16

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-The instant revision petition is filed against the impugned order dated 14.01.1999 passed by the learned Civil Judge (Junior Division), Mandal District Bhilwara in Civil Misc. Case No. 25/1998. 2. The case of the petitioner is that suit was filed under Order 37 of the CPC by the non-petitioner Ladu against the petitioner Mehboob. Initially the summons as required under Order 37 Rule 2 CPC was issued to the petitioner calling upon him to enter his appearance within ten days of the service of the summons. The petitioner entered appearance on 23.08.1997 whereafter, it was incumbent for the plaintiff non-petitioner to serve on the petitioner defendant summons for Judgment supported by affidavit as required under Order 37 Rule 3(4) CPC but, no summons was issued though Order 37 Rule 3(4) CPC is mandatory in nature. 3. The learned Civil Judge against the previsions of Order 37 fixed the next date of hearing on 010.1997. Thereafter, without issuing any further notice in accordance with Order 37 Rule 3(4) CPC the trial Court has proceeded to decree the suit on 09.01.1998. Obviously, there was no evidence on record in support of the suit. The petitioner upon coming to know that Judgment and decree is passed against him, filed application under Order 37 Rule 4 CPC for setting aside the decree which has been passed contrary to law without following the procedure under Order 37 Rule 3(4) CPC. 4. In this petition notices were issued to the non-petitioner plaintiff while admitting the revision on 12.04.1999. Further, on that day execution of the decree dated 09.01.1998 passed in Civil Original Suit No. 8/1997 was stayed till further order. Since, nobody appears despite service, the interim stay granted by this Court was confirmed on 02.01.2000. Today this petition is listed for hearing but, nobody has put in appearance on behalf of non-petitioner. In these circumstances, there is no option for this Court but to decide the present revision petition on merit. 5. I have heard the arguments advanced by the learned Counsel for the petitioner and perused the record. 6. In my option it is obvious from the record that the learned trial Court has issued summons initially under Order 37 Rule 2 CPC and thereafter, no notice as required under Order 37 Rule 3(4) was issued which is mandatory under the provisions of the Code of Civil Procedure. 6. In my option it is obvious from the record that the learned trial Court has issued summons initially under Order 37 Rule 2 CPC and thereafter, no notice as required under Order 37 Rule 3(4) was issued which is mandatory under the provisions of the Code of Civil Procedure. The relevant extract of Order 37 Rule 3(4) CPC is reproduced hereunder: “If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for Judgment in Form No. 4-A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit veriftying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.” 7. In the above circumstances, it is obvious from the record that Judgment and decree passed on 08.01.1998 is contrary to the provisions of the Code of Civil Procedure. Accordingly, the revision petition is allowed and the order passed by the learned trial Court dated 14.01.1999 is set aside. The application filed by the petitioner under Order 37 Rule 4 CPC is ordered to be allowed and the trial Court is directed to proceed in accordance with law and adjudicate the suit so filed by the plaintiff non-petitioner.