Thus, on a bare reading of this language it is clear that one part of the procedure envisaged is the one under Rule 2 wherein after receipt of summons for appearance the defendant shall not defend the suit unless he enters appearance and in the event of his not entering appearance the allegations in the plaint arc to he deemed to he admitted and the plaintiff is entitled to a decree. In this view of the matter if the defendant enters appearance as per Order 37 Rule 2, then this one stage of the plaintiff to be entitled to decree is lost. Obviously, therefore, thereafter the plaintiff has to proceed further and after the defendant so enters appearance, the plaintiff is to serve on the defendant a summon for judgment which has to be returnable after a particular length of time, it is to be supported by affidavit, verifying the cause of action, and the amount claimed, and also stating that in his belief there is no defence to the suit. It is only and only after the plaintiff does all this, that the defendant attracts any obligation to apply for leave to defend. Otherwise in absence of any such service of summons for judgment, in the scheme of things, the defendant is very much entitled to forget about the suit and just lie low. Not only this in my opinion until and unless the defendant is served with summons for judgment in accordance with Order 37 Rule 3(4), the defendant even does not gel any right to even apply for leave to defend, much less can such application at all be considered on merits, by the learned trial court. Until and unless the defendant is served with the necessary papers including affidavit of the plaintiff verifying the cause of action and the amount claimed and also deposing that in his belief there is no defence to the suit, the defendant is not required, rather even not entitled, to apply for leave to defend, as until all this is done, in the set up of things it cannot be said that the defendant is at all even supposed to defend any action.
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Rajasthan High Court
Sewa Ram vs Firm Modaram Tulsiram on 9 January, 2001
Equivalent citations: 2001 (2) WLC 312, 2001 (1) WLN 570
Bench: N Gupta
(1) This second appeal has been filed by the defendant against the judgments and decrees of the learned courts below decreeing the respondent's suit filed u/Order 37 C.P.C. passing a decree for a sum of Rs. 6,000/- along with costs.
(2)._The substantial question of law involved in Ihe appeal is as under:-Whether even without issuing any summons for judgment under Order. 37 Rule 3 C.P.C. the suit can be decreed simply because the defendant had entered appearance in response to summons for appearance issued under Order 37 Rule 2 and under a misconceived notion happened to request the learned trial court to be granted leave to defend and the learned trial court happened to grant leave on the condition of the deposit of the entire suit amount in the court which amount the defendant failed or omitted to deposit?
(3). Brief facts of the case are that on 14.12.93 a suit was filed by the plaintiff respondent alleging inter alia that the plaintiff is a tenant of a premises of the defendant and in the backdrop of that relationship defendant borrowed a sum of Rs. 6,000/- from the plaintiff on 14.1.91 for his domestic purposes with a promise to return them shortly. It is also alleged that looking to the relations no interest was stipulated. It was then alleged that thereafter no payments were made whether for principal or interest and the defendant went to Assam where from he has not returned and since the limitation for suit is expiring the suit is being filed on the basis of promissory note. Interest by way of damages was claimed @ 2% per month. This suit was purportedly filed u/O. 37 C.P.C. On filing the suit, vide order dt. 8.12.93 summons were ordered to be issued. On receipt of summons, the defendant on 7.1.94 entered appearance and requested for being given opportunity to submit defence. Thereafter on 15.7.94 the defendant filed yet another application to the effect that after the defendant entering appearance on 7.1.94, the plaintiff has not taken any proceedings in accordance with O. 37 R. 3 C.P.C., and therefore, the defendant should be allowed to produce written statement and the suit be ordered to be treated to be not one of summary nature. As the record shows that after defendant entering appearance the case was transferred and the learned transferee court on 28.5.94 drew an order sheet to the effect that learned counsel for the defendant wants time to file written statement and to argue the application, therefore the file was ordered to be put up on 15.7.94 for filation of written statement and arguments on the application. Thereafter on 15.7.94, the case was fixed on 22.7.94 for arguments on the application dt. 15.7.94. It was also recorded that the counsel for the plaintiff has filed summons for judgment in summary suit so also affidavit which may be tagged with file. On 22.7.94 again the case was adjourned as the learned Presiding Officer was on leave. Then on 1.8.9-1 summons were ordered to be issued to the defendant (obviously summons for judgment) and the case was fixed on 6. 10.94. On 6.10.94 again the case was adjourned for arguments on the application dl. 15.7.94. Then on 25.10.94 the learned counsel for defendant did not press the application dt. 15.7.94, and therefore, summons u/O. 37 R. 3 C.P.C. were ordered to be issued to the defendant in accordance with law. The fact remains that even thereafter, on 25.11.94, 1 7.12.94, 22.4.95, 21.-1.95, 25.8.95, 21.1.95, 15.12.95, 22.2.96 and 18.5.96 it was noticed that summons u/O. 37 R. 3 C.P.C. have not been issued and they be issued and the case was fixed on 16.7.96. Unfortunately on this date even without issuance of summons for judgment under Order 37 Rule 3 the defendant without mentioning any provision of law and even without mentioning anything about issuance or non-issuance for summons of judgment moved an application praying for being given leave to defend, and therefore, the case was fixed on 16.8.96 for reply and arguments on this application. Therefore the case was transferred to the Court of Additional Civil Judge (Sr. Division) where on 1.10.96 the plaintiff gave out to be not desirous to file reply and Ihe case was fixed for arguments on the application on 27.11.96. Then on 21.1.97 the arguments were heard and vide order dt. 29.1.97 the leave was granted subject to the condition of the appellant depositing suit amount Rs. 6000/- within two months. Thereafter the appellant could not deposit the amount and applied for extension of time. However, ultimately he could not deposit the amount. Therefore, vide judgment dt. 21.5.97 the suit was decreed solely on the ground that the appellant did not deposit the amount despite specific direction that in the even of non-deposit the suit would be decreed under Order. 37 Rule 3 C.P.C.
(4). Aggrieved of the judgment, the appellant filed an appeal before the learned lower Appellate Court pointedly contending that the decree has been passed without issuing summons for judgment which was a mandatory requirement of law, and therefore, the impugned judgment and decree is ineffective and void. It may also be observed that the appellant had also filed yet another appeal against the order dt. 6.5.97 as well.
(5). However, the learned lower Appellate Court vide impugned judgment and decree dismissed both the appeals as lime barred. Aggrieved of the Judgment and decree the present second appeal has been filed.
(6). It has been contended by the learned counsel for the appellant that the learned lower Appellate Court was in error in dismissing the appeals as barred by time despite the fact that the allegations made by the appellant in the application u/S. 5 of the Limitation Act had not been controverted on the side of the respondent. It is also contended that all said and done since summons for judgment as required by Order. 37 Rule 3 had never been served upon him, rather not even issued, learned trial court had no jurisdiction whatsoever to decree the suit or even pass any order purporting to decree the suit with the result that the purported judgment and decree is wholly without jurisdiction and void, as such the question of limitation rather did not even arise as the appellant could ignore or challenge the purported order as and when it was sought to be executed against the appellant.
(7). Controverting these submissions it is contended by the learned counsel for the respondent plaintiff that since the defendant had already entered appearance, and had subsequently changed the counsel, and filed an application seeking leave to defend, which was allowed, mere non issuance of summon for judgment is of no consequence, and since he was being represented by counsel in the trial court, the appellant was required to file appeal within time, and since the teamed lower Appellate Court has found it as a fact that the appellant had failed to make out any sufficient cause for the delay in filing appeal, the appeals have rightly been dismissed by the learned lower Appellate Court, and the present appeal is required to be dismissed.
(8). I have considered the rival submissions and have gone through the record. A bare look of the provisions of Order 37 C.P.C. would show that it prescribes a special procedure for the suits of the nature cognizable under Order 37 Rule (1) (ii) being summary proceeding. Obviously this procedure cannot be applied to any other nature of the suit. Likewise a comprehension of the over all scheme of the provisions of Order 37 shows that in view of the fact that it provides a summary procedure for trial of the suit, it, to a considerable extent, impinges upon the inherent right of the defendant to contest the suit and therefore obviously provisions of Order 37 are required to be strictly construed against the plaintiff.
(9). While construing the position of the defendant, the principles applicable to trial of regular suits cannot be imported against the defendant. In regular suits only one summons is served on the defendant in response to which Ihe defendant may appear and, as of right file a written statement and contest the suit. In the event of failure to appear on the first date of hearing, even after the suit is ordered to proceed exparte the defendant can have such order set aside and even in the event of failure to be able to make out any sufficient cause for the absence, he has a right to participate in the subsequent proceedings. As against this under the provisions of Order 37 if the defendant fails to enter appearance in response to the summons issued under Order 38 Rule 2, or if he fails to apply for leave to defend within ten days of the service of the summons for judgment, or in the event of application for leave to defend being refused, by fiction of law the suit of the plaintiff is deemed lo be admitted and the plaintiff is entitled to-a decree. In such circumstances the procedure required to be followed by the plaintiff has to be strictly adhered to, and is to, be construed as mandatory. It is a different story that the language of various sub-rules and rules of Order 37 in this regard are couched with the word "shall".
(10). It is in this background that a look at the provisions of Order 37 Rule 3(4) shows that according to it, if the defendant enters appearance, "the plaintiff shall thereafter serve oh the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form, as may be prescribed from time to lime, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit." Then according to sub-rule (5) the defendant may, at any lime within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just."
(11). Thus, on a bare reading of this language it is clear that one part of the procedure envisaged is the one under Rule 2 wherein after receipt of summons for appearance the defendant shall not defend the suit unless he enters appearance and in the event of his not entering appearance the allegations in the plaint arc to he deemed to he admitted and the plaintiff is entitled to a decree. In this view of the matter if the defendant enters appearance as per Order 37 Rule 2, then this one stage of the plaintiff to be entitled to decree is lost. Obviously, therefore, thereafter the plaintiff has to proceed further and after the defendant so enters appearance, the plaintiff is to serve on the defendant a summon for judgment which has to be returnable after a particular length of time, it is to be supported by affidavit, verifying the cause of action, and the amount claimed, and also stating that in his belief there is no defence to the suit. It is only and only after the plaintiff does all this, that the defendant attracts any obligation to apply for leave to defend. Otherwise in absence of any such service of summons for judgment, in the scheme of things, the defendant is very much entitled to forget about the suit and just lie low. Not only this in my opinion until and unless the defendant is served with summons for judgment in accordance with Order 37 Rule 3(4), the defendant even does not gel any right to even apply for leave to defend, much less can such application at all be considered on merits, by the learned trial court. Until and unless the defendant is served with the necessary papers including affidavit of the plaintiff verifying the cause of action and the amount claimed and also deposing that in his belief there is no defence to the suit, the defendant is not required, rather even not entitled, to apply for leave to defend, as until all this is done, in the set up of things it cannot be said that the defendant is at all even supposed to defend any action.
(12). In this view of the matter, in my view for even receiving any application for leave to defend and/or for proceeding further with the suit in the summary suit, issuance and service of summons for judgment with necessary enclosure is a "sine qua non" to confer any jurisdiction on the trial court. With a necessary consequence that if any decree is passed ignoring the compliance of Order 37 Rule- 3(4), it would be just void and rather without jurisdiction. Of necessity such a void and without jurisdiction decree can always be even ignored by the defendant and in any case can always he challenged even in any collateral proceedings.
(13). In the case in hand, as observed above, the learned trial court was conscious of the fact that summons for judgment has to be issued and the learned trial court on more than half a dozen occasions had directed the summons for judgment to be issued which had not been issued till then and the fact remains that notwithstanding all this and notwithstanding even ultimate non-issuance of summons for judgment, the learned trial court proceeded to decree the suit, simply because under some misconceived advise or notion the defendant happened to file an application purportedly seeking leave to defend, and on that application the learned trial court proceeded to grant leave to defend subject to the condition of depositing entire suit amount which for all practical purposes tantamounts to refusal of the leave.
(14). The logical conclusion of the above legal position when applied to the facts of the present case is that the order dt. 29.1.91, 6.5.97 and the decree passed by the learned trial court dt. 21.5.97 arc all just void and without jurisdiction. With the obvious result the defendant could just ignore them, and could challenge them as and when they were attempted to be executed against him, and as such the appeal filed before the learned lower Appellate Court could not be dismissed as barred by time.
(15). Consequently, the substantial question of law framed above is answered in the negative to the effect that in the circumstances comprehended in the question the suit cannot be decreed.
(16). The instant second appeal is, therefore, allowed. The impugned judgments and decrees arc set aside and the case is sent back to the learned trial court leaving it open to the learned trial court to proceed afresh in accordance with law i.e. if the plaintiff so desires a summons for judgment may be issued under Order 37 Rule 3 and thereafter the matter may be proceeded in accordance with law. The parties 'o bear their own costs throughout.
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