The court ruled that failure to serve summons for judgment invalidates an ex parte judgment, emphasizing the mandatory nature of procedural requirements under Order 37 of the CPC.

JUDGMENT :

1. The petitioner has challenged order dated 15.06.2024 passed by learned 4th Additional District Judge, Srinagar, whereby his application for setting aside of judgment and decree dated 29.04.2023 has been dismissed. Challenge has also been thrown to the judgment and decree dated 29.04.2023 passed by learned 4th Additional District Judge, Srinagar.

2. Issue notice to the respondent. Mr. Shahid Zameer, Advocate who is on caveat accepts notice on behalf of the respondent.

3. Heard learned counsel for the parties and perused the record of the case.

4. It appears that the respondent had filed a suit under Order 37 of CPC, seeking recovery of an amount of Rs.35,00,000/- (rupees thirty five lacs) from the petitioner before the Court of learned 4th Additional District Judge, Srinagar (hereafter referred to as ‘the trial court’). It seems that pursuant to the service of summons upon the petitioner/defendant, he appeared before the learned trial court on 19.12.2022 and his counsel sought time to file Vakalatnama. On the next date of hearing, i.e on 24.01.2023 again the petitioner/defendant put in his appearance before the trial court and his counsel sought time to file Vakalatnama. On 17.02.2023 counsel for the petitioner/defendant produced Vakalatnama and the matter was adjourned to 09.03.2023, on which date, learned Presiding Officer was on leave and the matter was posted to 17.04.2023. On the said date nobody appeared on behalf of the defendant and the trial court recorded that application seeking leave to defend the case has not been filed by the defendant and the matter was posted for appropriate orders to 29.04.2023. On the said date the learned trial court passed the impugned judgment and decree in favour of the respondent/plaintiff and against the petitioner/defendant, thereby holding the plaintiff entitled to amount of Rs.35,00,000/- (rupees thirty five lacs) alongwith interest @6% per annum with costs of the suit to the tune of Rs.5000/-. While passing the said judgment and decree the learned trial Court recorded that in terms of Rule 6 of Order 37 of CPC, the defendant has failed to apply for the leave to defend the suit, as such the plaintiff is entitled to judgment and accordingly the impugned judgment and decree came to be passed.

5. It seems that the petitioner/defendant made an application under Order 37 Rule 4 of CPC before the trial Court seeking setting aside of ex parte judgment and decree dated 29.04.2023. It was contended by the petitioner before the trial court that he had been arrested on 02.02.2023 and was released on 21.04.2023, as such he could not appear before the Court. It was also pleaded that summons for judgment in the prescribed form had not been served upon him (defendant). On these two grounds he had sought setting aside of ex parte judgment and decree. The learned trial court vide impugned order dated 15.06.2024 rejected both the contentions of the petitioner and dismissed his application.

6. As is clear from the minutes of the proceedings recorded by the learned trial court, summons for judgment has neither been issued by the trial court nor the same has been served upon the petitioner/defendant. The question that arises for determination is as to whether the trial Court could have proceeded to pass the impugned judgment and decree without service of summons for judgment upon the defendant. In this regard provisions contained in Rule 3 of Order 37 of CPC are required to be noticed and the same are reproduced as under:-

[3. Procedure for the appearance of defendant—

(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other j