The summons for judgment in Form No. 4-A Appendix-B, CPC, must be accompanied by an affidavit verifying the cause of action and the amount claimed, and the defendant would not be taken to have been properly served unless and until the said affidavit is also served upon him.

( 1 ) THIS order shall govern the disposal of an application (IA 931/96), filed on behalf of the defendants 1,2,3 and 5 under Order XXXVII Rule 3 (7) of the Code of Civil Procedure, 1908 (hereinafter referred to as `the CPC ) seeking condonation of delay in filing the application for leave to defend the suit.

( 2 ) THE facts relevant for the disposal of the above mentioned application lie in a narrow compass. The plaintiff M/s. Nirayu Private Limited, through its constituted attorney Shri Kamal Kumar has filed a suit (Suit No. 2815/94) for the recovery of Rs. 14,63,438. 58 against the defendants under Order XXXVII, CPC. After the service of the summons of the suit in Form No. 4, Appendix-B, CPC, the plaintiff filed an application [ia 9761/95] for issue of summons for judgment on the defendants. The above said application came up for hearing before the learned Predecessor of this Court on 17. 10. 95 and the learned Predecessor of this Court vide order dated 17. 10. 95 directed that summons for judgment be served on the defendants on plaintiff s filing the process fee, for 9. 1. 1996.

( 3 ) DEFENDANTS 1,2,3, and 5 (hereinafter referred to as `the applicants ) have filed the present application (IA 931/96) under Order XXXVII, Rule (3)7, Civil Procedure Code with the prayer that delay in filing the application, seeking leave to defend the suit be condoned for reasons stated in the application. The main reason advanced by the applicants in the above said application for condoning the delay is that the summons for judgment have not been served on the applicants in accordance with the mandate of Order XXXVII, Civil Procedure Code as no affidavit verifying the cause of action and the amount claimed has been served alongwith the summons for judgment on the applicants. It is stated that in the absence of the above said statutory affidavits there is no service of summons for judgment on the applicants. In the application, besides the above ground, the applicants, on merits have taken other grounds also to the effect that there were certain disputes in the partnership firm of M/s. Mohan Lal and Company (defendant No. 1) of which defendants 2 to 5 are partners and that the accounts of the defendant firm had not been finalised and all the relevant documents/books were lying with M/s. P. N. Khanna and Company, Charted Accountants as a result of which the applicants did not have any access or information regarding the accounts and were unable to file the application seeking leave to defend the suit. It is also stated that there were also talks for settlement/compromise going on between the parties. It is prayed by the applicants in the above said application that delay in filing the application (IA 930/96), seeking leave to defend the suit be condoned.

( 4 ) NOTICE of the above application was given to the plaintiff who has filed a detailed reply. In the reply, filed on behalf of the plaintiff, it is stated that the present application, filed on behalf of the applicants is not maintainable in the eyes of law and is liable to be dismissed with costs. It is stated that summons for judgment were served on the defendants in accordance with law and the defendants/applicants have taken the false plea which is malafide and the applicants are not entitled to any indulgence by this Court. It is stated in the reply that the applicants are only prolonging and delaying the proceedings by making the false averments. It is stated that the application being frivolous be dismissed with costs and the suit filed by the plaintiff be decreed as prayed for as there is no application for leave to defend in the eyes of law on behalf of the defendants within limitation.

( 5 ) I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. Order XXXVII, Rule (3) (7), Civil Procedure Code which is relevant for deciding the above said application reads as under:

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