The court highlighted the significance of complying with the procedural requirements of Order 37 CPC and the importance of examining the defendant's defense before proceeding ex parte.

JUDGMENT

Raj Mohan Singh, J. - Petitioner has preferred this revision petition against the orders dated 26.09.2016 and 19.03.2014 passed by the Civil Judge (Sr. Divn.) Gurugram.

2. Brief facts of the case are that vide order dated 19.03.2014, defendant/petitioner was proceeded against ex parte and the case was adjourned for consideration on 01.05.2014. Vide order dated 26.09.2016, the application filed by the defendant/petitioner for setting aside the ex parte order dated 19.03.2014 was dismissed.

3. Plaintiff/Respondent filed a suit for recovery under Order 37 CPC against the defendant/petitioner. Petitioner/defendant could not appear in time and appeared before the Court after ten days. He filed application under Order 37 Rule 3 Sub Rule 7 CPC for condonation of delay of 10 days in entering appearance.

4. Plaintiff/Respondent filed reply to the aforesaid application and the same is still pending.

5. During pendency of the aforesaid application, defendant/petitioner was proceeded against ex parte on 19.03.2014. Perusal of the record would show that despite the defendant/petitioner being proceeded against ex parte on 19.03.2014, presence of learned counsel for the defendant was marked in the presence memo dated 02.12.2015, 19.01.2016, 07.04.2016, 23.05.2016, 21.07.2016, 05.08.2016, 05.09.2016, 15.09.2016, 22.09.2016 and 04.10.2016.

6. At the time of issuance of notice of motion on 28.11.2016 following order was passed by the Co-ordinate Bench of this Court:-

"Counsel for the petitioner inter alia contends that though vide order dated 19.03.2014, the petitioner has been proceeded against ex parte but the trial Court till date has not decided his application for condoning delay of 10 days in putting in appearance in pursuance of the summons issued under Order 37 of the Code of Civil Procedure. It is further submitted that even though the petitioner has been proceeded against ex parte, it has right to join the proceedings at this stage.

Notice of motion for 06.03.2017.

In the meantime, the petitioner shall deposit Rs. 15,00,000/- with the trial Court within a period of one month.

On necessary deposit being made, the same shall be converted into a fixed deposit payable to the successful party.

After necessary deposit being made, further proceedings before the trial Court shall remain stayed."

7. In compliance to the aforesaid order, learned counsel for the petitioner has placed on record the copy of order dated 09.12.2016 passed by the Civil Judge (Jr. Divn.) Gurugram whereby the defendant/petitioner has deposited cheque No.054929 drawn from HDFC Bank in a sum of Rs. 15,00,000/- before the trial Court and the same was taken on record.

8. Order 37 Rule 2 CPC deals with institution of summary suits. The summons of the suit have to be issued to the defendant in Form No.4 as shown in Appendix B. The defendant cannot defend the suit as referred to in sub-rule(1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for the amount in question. No such order was passed by the trial Court.

9. Order 37 Rule 3 CPC prescribes for the procedure for the appearance of the defendant. In the event of service of summons upon the defendant under Rule 2 of Order 37 CPC in the prescribed form, the defendant may at any time within ten days of such service enter an appearance either in person or by a pleader and in either case, he shall file in Court an address for service of notice on him. If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summon for judgement in Form No.4-A in Appendix B or such other form as may be prescribed from time to time returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action, amount claimed and stating that in his behalf, there is no defence to the suit. Further defendant may at any time, within t