The central legal point established in the judgment is the misdirection caused by Form No. 4A and the defendant's misunderstanding, leading to the setting aside of the decree.

Prakash Tatia, J.-Heard learned Counsel for the parties.

The petitioner/defendant is aggrieved against the order dated 29.08.2005 by which the trial Court dismissed the petitioner’s application filed under Order 37 Rule 4 CPC for setting aside the decree passed under Clause (a) of Sub-rule (6) of the Rule 3 of Order 37 CPC as the petitioner/defendant did not sought leave to defend the suit within a period of 10 days as required by Sub-rule (5) of Rule 3 of Order 37 CPC.

2. Learned Counsel for the petitioner has shown the certified copy of summon in Form No. 4A issued by the trial Court under Order 37 Rule 3 CPC and submitted that he received the summon wherein it is clearly mentioned that the defendant is to attend the Court on 24.07.2004. The petitioner/defendant was sick on 24.07.2004 and, therefore, Court not appear in Court on 24.07.2004. On 24.07.2004, the trial Court passed the money decree against the petitioner/defendant. The next day was Sunday, therefore, the petitioner submitted application for setting aside the ex-parte decree on 26.07.2004. That application was dismissed by the trial Court on the ground that the petitioner was supposed to submit his leave to defence within ten (10) days form the date of service of summons upon him and, therefore, the plea of the petitioner that he was sick on 24.07.2004 was irrelevant. The trial Court for this reason dismissed the petitioner/defendant’s application for setting aside the decree as no cause has been shown by the petitioner/defendant for his not submitting application for leave to defend the suit under Sub-rule (5) of Rule 3 of Order 37 CPC.

3. I perused the provisions contained in Order 37 CPC as well as Forms No. 4 and 4A prescribed in Appendix-B attached to Civil Procedure Code. Form No. 4 is required to be served upon the defendant as provided under Order 37 Rule 2(2) CPC whereas the summon for Judgment as prescribed in Form No. 4A is required to be served upon the defendant under Order 37 Rule 3(4) CPC. There is a lot of difference in the language used in Forms No. 4 and 4A. Forms No. 4 and 4A prescribed in Appendix-B are reproduced as under:-

“No. 4 SUMMONS IN A SUMMARY SUIT (Order XXXVII, Rule 2) (Title)

To

. . . . . . . . . . . . . (Name, description and place of residence)

“WHEREAS . . . . . . . . . . .hasinstituted a suit against you under Order XXXVII, of the Code of Civil Procedure, 1908, for Rs. . . . . . . .and interest, you are hereby summoned to cause an appearance to be entered for you, within ten days from the service hereof , in default whereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs. . . . . . . . and the sum of Rs. . . . . . . for costs, together with such interest, if any, as the Court may order.

If you cause an appearance to be entered for you, . . . . . . . . .the plaintiff will thereafter serve upon you a summons for Judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit.

Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend. Given under my hand and the seal of the Court, this . . . . . . .day of . . . . . . . 19. . ./20. . . . “No. 4A

SUMMONS FOR Judgment IN A SUMMARY SUIT (Order XXXVII, Rule 3)

(Title)

In the. . . . . . .Court, at . . . . . . Suit No. of 19. . . . /20. . . .

XYZ . . . . . . . . . . . . . . . . . . . . . . .Plaintiff

vs. ABC . . . . . . . . . . . . . . . . . . . . . . .Defendant. “Upon reading the affidavit of the plaintiff the Court makes the following order, namely:-Letall parties concerned attend the Court or Judge, as the case may be, on the. . . . . day of . . . . . 19. . . . .

./20. . . . . ., at ... . . . . .O’clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain Judgment in this