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1987 Supreme(J&K) 15
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S.M. Rizvi, J.
O.N. Tikku - Appellant
Versus
Karan Singh (Dr.) - Respondent
CMP No. 846-A/1986
Decided On : 11 March, 1987
Advocate For Appellant:Petitioner in person
Advocate For Appellant: R.A. Jan
Advocate For Respondent: Qazi Mehraj-ud-Din
A defective notice issued under O. 37 CPC can prejudice the defendant and cause delay in entering appearance, which can be condoned if the defendant has a sufficient cause for the delay.
Headnote:
O. 37 CPC - Summons - Service - Delay in entering appearance - Condonation - Defective notice - Prejudice to defendant.
Fact of the Case:
Defendant received a summons under O. 37 CPC on 29-11-1986, but failed to enter appearance within the prescribed time. He filed a CMP for condonation of delay, claiming that the notice was defective and that he was prejudiced by the delay caused by bad weather.
Finding of the Court:
The court found that the notice issued to the defendant was not in accordance with Form 4 as prescribed under O. 37(2) CPC, and that this had prejudiced the defendant in complying with the order. The court also found that the delay in entering appearance was caused by the defective notice and the bad weather, and that this was a sufficient cause to condone the delay.
Issues: 1. Whether the notice issued to the defendant was defective and prejudiced him in complying with the order? 2. Whether the delay in entering appearance was caused by the defective notice and the bad weather? 3. Whether the delay should be condoned?
Ratio Decidendi: 1. The court held that the notice issued to the defendant was defective as it was not in accordance with Form 4 as prescribed under O. 37(2) CPC. This prejudiced the defendant as he was not informed that he had to enter his appearance within ten days from the receipt of the notice. 2. The court held that the delay in entering appearance was caused by the defective notice and the bad weather. The defendant could not be expected to be aware that he had to enter his appearance within ten days, and the bad weather prevented him from making the relevant documents available to his counsel. 3. The court held that the delay should be condoned as the defendant had a sufficient cause for the delay.
Final Decision: The court accepted the defendant's prayer in the CMP and condoned the delay in entering his appearance in the court. The court also deemed that the notice under O. 37 in Form 4 had been issued to the defendant and that he had received the same, and that he had entered his appearance within the time prescribed therein.
1) That he was served on 3rd December, 1986, at New Delhi.
2) That he sent his power of attorney and other relevant papers to his Advocate for appearing and defending the case at Srinagar.
3) That his Advocate received the power of attorney and other papers on 17th December, 1986, and the delay in receiving the papers was caused due to bad weather.
4) That in the said circumstances, the application for leave to enter appearance and to defend the suit could not be filed within the prescribed period.
2. The respondent plaintiff has resisted the petition, inter alia, on the following grounds:
(1) That in the petition the defendant has averred that he got the notice and the copy of the plaint and the documents on the 3rd of December, 1986. This is a lie. The acknowledgement receipt on the file would show that the notice has been received on 29th of November, 1986. The averment to the contrary is malafide. Rule 3 (2) of O. XXXVII (as amended) lays down, as under: -
Unless otherwise ordered, all summons, notices and other judicial processes, required to be served on the defendants shall be deemed to have been duly served if they are left at address given by him for such service."
(2) That the defendant has in the application given his address as 3 Nya Marg Chankayapuri, New Delhi, and the summons have been delivered to him in his office on that day.
(3) That under the amended O. XXXVII in case defendant does not put in his appearance under rule 2 sub-rule 3, the plaintiff shall be entitled to a decree. Section 5 of the Limitation Act does not apply as O. XXXVII is a complete code by it self, and it does not provide for condonation of delay.
Under Sub rule 4 of Rule 3, the defendant is bound to disclose such facts as may be sufficient to entitle him to defend, apply on such summons for leave to defend such suit and leave to defend may be granted un-conditionally or upon such terms as may appear to the court.
That the stage for making an application has not arisen and this has to be done by serving a notice upon the plaintiff to 1, this, effect, which has not also been done. Besides, no facts have been disclosed which would entitle the defendant to defend the suit. Merely saying without referring to any facts or mentioning facts that the suit is false and frivolous is not making out a case for leave to defend the suit being granted."
3. Heard learned counsel for the parties. The record was also perused.
4. At the outset, it would be advantageous to adumbrate a few facts giving rise to this civil miscellaneous petition having been filed by the petitioner herein, who is the defendant in the main suit.
5. The plaintiff filed a suit in this court against the defendant under O.37 of the CPC. An order for issuing a notice under O.37 was passed on 7-11-1986. The notice appears to have been issued by the Registry on 20-11-1986 through a registered post with acknowledgment due. The AD bears the date of receipt of the notice as 29-11-1986. The CMP for leave to enter appearance and the CMP for condonation of delay in filing the same have been filed on 18-12-1986.
6. Mr. Qazi Mehraj-ud-Din firstly argued that the notice issued to the defendant was received by him only on 3-12-1986, which according to him was not in accordance with Form 4 as prescribed under 0,37 (2) of the CPC and nor was it accompanied by a copy of the plaint, and, therefore, he could not comply with the order contained therein within time.
7. The perusal of the AD shows that the notice was received on behalf of the defendant by somebody on 29-11-1986. Whether the said notice was handed over to the person of defendant on 29-11-1986 or on any date thereafter, is a matter of evidence. It has not, however, been suggested by the de
