Back
High Court Of Delhi
ARJAN LAL VERMA - Appellant
Versus
SPIT.RAWEL KAUR - Respondent
Civil 223 of 1981
Decided On : 07/20/1981
The respondent filed a suit under eh provisions of Order 37 of the Code of Civil Procedure and on a process servers report that the petitioner had refused to accept service, a decree was passed on the ground that no appearance had been filed within the statutory period of 10 days, and, thereforee, the plaintiff was entitled to a judgment. Hence the present revision. Allowing the revision,
Held:
1. It is undisputed that the counsel for the defendant had filed a power of attorney in the court within the prescribed period filed a power of attorney in the court within the prescribed period of 10 days but this fact had not been brought to the notice of the judge, an neither the plaintiff nor his counsel were aware of it because no notice of appearance had been sent to them. Under Order 37 Rule 3 (1), the defendant is required to enter appearance in person or by pleader and file in court an address for service of notices on him within 10 days of being served with the summons and also give notice of entering appearance to the plaintiff. In the present case, the defendant complied with the first requirement but not the other two. Entering appearance does not of itself involve or import the filing of an address for service in court or serving notice of such appearance on the plaintiff or his counsel. The words enter an appearance in Order 37 Rule 3(2) muse be given a narrow and restricted meaning because the right of the defendant to defend the suit is at stake.
2. The trial judge had no jurisdiction to pass a decree against the defendant because appearance had been entered on his behalf although no notice of the appearance had been served on the opposite party for which default the defendant must pay costs.
( 2 ) IT was further held that Sub-rule (3) of Rule 2 prohibits a defendant from defending the suit unless he enters an appearance . Sub-rules (1) and (3) of Rule 3 indicates that entering appearance is one thing, filing an address for service another and giving notice of appearance to the plaintiff or his counsel a third. Sub-rule (3) of Rule 2 has nothing to say as to the effect of non- compliance with the second and third requirements. In accordance with the principle of harmonious construction, the words enters an appearance in that sub-rule must be read in the same sense as is derived from sub-rules (1) and (3) of Rule 3 These sub-rules lead irresistibly to the conclusion that entering an appearance does not of itself involve or import the filing of an address for service in court or serving notice of such appearance on the plaintiff or his counsel. For. otherwise, those two requirements would not have been started additionally and separately.
( 3 ) ARD, even supposing there is some ambiguity in the meaning of the words enters an appearance in sub-rule (3) of Rule 2 they must be given a narrow and restricted meaning considering that the right of the defendant to defend the suit is at stake.
( 4 ) HELD further that the defendant can be mulcted in costs for the motions mecessitated to secure compliance with the rules or of any other proceedings attributable to his default. In view of the above it was held that the Judge below had no jurisdiction at that stage to pass a decree against the defendant because appearance had been entered on his behalf.
( 5 ) PETITION was allowed and order of the court below was set aside. Parties were directed to appear before the court below on 10-8-81, with a direction to the defendant to file an address for service and also give notice of having entered appearance to the plaintiff. The defendant was also ordered to pay a sum of Rs. 100. 00 as conditional costs to the plaintiff.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
