1985 Supreme(MP) 750

IN THE HIGH COURT OF MADHYA PRADESH
P. C. PATHAK, J.
Shashi Kumar Agnihotry - Appellant
Versus
Central Bank of India - Respondent
C. R. No. 1299 of 83 (J)
Decided on : 03-12-1985

Headnote:Civil Procedure Code, 1908 – O. 37, R. 3 (4) and (5) – stage for submitting affidavit showing grounds of defence by defendant under sub – rule (5) – comes after the plaintiff has complied with provision under sub – rule (4).

        Short Note

       1. The non – applicant/Bank filed a suit for recovery of Rs. 14,779.69 against the debtor/non – applicant No. 2/defendant No. 1 and two guarantors, defendants No.2 and 3. Summary procedure prescribed under Order XXXVII of the Code was applied to the present suit and summons as contemplated – under R. 3(1) of Order XXXVII was sent to the defendants. The summons meant for service on defendant No.2 was actually delivered to his wife. The applicant submitted that on account of his daughter's illness, be could not appear within ten days of the service of summons as required by the said rule. He appeared later and filed two applications, one under rule 7 of Order IX and other under rule 3 (5) and (7) of Order XXXVII of the Code showing cause to excuse delay In his entering appearance in the Court He also filed a medical certificate and an – affidavit to show his daughter's illness and the reason for his failure to appear within ten days. Both these applications were rejected by the learned trial Court on the ground that an application detailing grounds on which he wanted to defend the suit was not filed. In the absence of any such application, the learned trial Court concluded that the applicant had no defence. However, in the interest of justice, it allowed him to defend the suit on a condition of his depositing the entire amount claimed in the suit. Aggrieved by this order, the present revision is filed.

       2. Held : On behalf of the applicant; it was submitted that on an analysis of R. 3 of order XXXVII of the Code, one will find that sub – rule (1) of R. 3 prescribes for service of summons on the defendant, whereupon the defendant may enter an appearance at any time within ten days of such service. Thereafter sub – rule (4) of rule 3 is attracted and the plaintiff has to serve on the defendant a summons for judgment in Form No 4 – A in Appendix B returnable not less than ten days from the date of service supported by an affidavit verifying the case of action and the amount claimed and stating that in his belief there is no defence to the suit, it is only after this stage that sub – rule (5) of rule 3 requires the defendant to submit within ten days from the service of summons for judgment, by affidavit or otherwise disclosing facts which entitle him to defend the suit. On such affidavit being made, the learned trial Court has to pass order granting leave to the defendant unconditionally or upon such terms as may appear to be just. All these aspects have analytically been discussed in Printpak Machinery v. Jav Kav Paper Congeters (FB) (AIR 1979 Delhi 217).

       3. After hearing learned counsel for both the parties, I am of the opinion that this revision must be allowed. The stage for submitting an affidavit detailing grounds to defend the suit as contemplated under sub – rule (5) of rule 3 of Order XXXVII of the Code comes into operation only after the plaintiff has complied with the requirements of sub – rule (4) of rule 3 of Order XXXVII. It was not urged before me that the plaintiff had complied with the requirements of sub – rule 4.

       4. That being so, the application seeking condonation of delay for entering appearance could not be rejected nor terms could be imposed as prescribed under sub rule 5.

       5. There is no doubt that the learned trial Court committed material irregularity in exercise of jurisdiction vested in it. AIR 1979 Delhi 217 (FB) relied on.

       Revision allowed.