O.N. Tikku Vs. Dr. Karan Singh - Court Judgment

Excerpt:
- orders.m. rizvi, j. 1. in this cmp, which is supported by an affidavit, a prayer has been made by the petitioner/defendant that the delay in entering his appearance in the court upon a summons received by him under order 37, c.p.c. be condoned in his favour, inter alia, on the following grounds : --(1) that he was served on 3rd dec., 1986, at new delhi. (2) thai 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 dec., 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......

Judgment:
ORDER

S.M. Rizvi, J.

1. In this CMP, which is supported by an affidavit, a prayer has been made by the petitioner/defendant that the delay in entering his appearance in the Court upon a summons received by him under Order 37, C.P.C. be condoned in his favour, inter alia, on the following grounds : --

(1) That he was served on 3rd Dec., 1986, at New Delhi.

(2) Thai 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 Dec., 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 petitions the defendant has averred that he got the notice and the copy of the plaint and the documents on 3rd Dec., 1986, This is a lie. The acknowledgment receipt on the file would show that the notice has been received on 29th Nov., 1986. The averment to the contrary is mala fide. Rule 3(2) of Order 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 Naya Marg, Chankayapuri, New Delhi, and the summons' have been delivered to him in his office on that day.

(3) That under the amended Order 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 Order XXXVII is a complete code by itself, and it does 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 unconditionally 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 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 Order 37 of the C.P.C. An order for issuing a notice under Order 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 Order 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 defendant that the said notice was not received by anybody on his behalf, and that being so, there is no alternative for the Court but to presume that the notice was delivered to the defendant on 29-11-1986. It is also not correct that the copy of the plaint was not received by the defendant with the notice. The perusal of the AD shows that a copy of the plaint was appended with the notice.

8. As regards the contention that the notice issued to the defendant was not in accordance with Form 4, as prescribed, under Order 37/2), and it has prejudiced him in complying with the order. I think it has much force behind it, and cannot be taken lightly.

9. The Civil P.C (Amendment) Act, 1983, (Act No. XI of 1983) has drastically changed the scope and extent of Order 37. Previously, the defendant was notified leave from the Court within thirty days to appear and defend the suit, and within such time to cause an appearance to be entered for him. In form 4, introduced by the amendment mentioned above, now the defendant is to be notified to cause an appearance to be entered for him within ten days from the service. He is also to be notified therein that if he causes an appearance to be entered for him, the plaintiff will, thereafter serve upon him a summons for judgment, at the hearing of which he will be entitled to move the Court for leave to defend the suit.

10. Mr. Jan submitted in rebuttal that the defendant cannot be allowed to plead ignorance of law on the basis of ignorantia juris non excusat, and that once he received the notice under Order 37, he shall be presumed to know as to what he has to comply with. Though, there can be no two opinions about the legal position that ignorance of law is no excuse, but that maxim cannot be applied here to the detriment of the defendant, much less, for the wrong occasioned to him by an act of the Court. As a matter of fact, the Registry of the High Court has not changed the pro forma of the notice to be issued under Order 37, in Form 4, in accordance with the change introduced by the amendment of the C.P.C., and that being so, the defendant cannot be made to suffer for an ignorance of fact. He could not be expected to be aware that within ten days he had to enter an appearance. Unless the defendant is informed that he has to enter his appearance within ten days from the receipt of the notice, which fact is to be notified to him in the summons in Form 4, he cannot be held guilty for non-compliance of the order. Otherwise, it would be condemning a person unheard, which is against all the canons of natural justice.

11. In these circumstances, I have no hesitation in agreeing with Mr. Qazi that the non-compliance with the mandate of Order 37(2) has caused prejudice to the defendant. No legal notice as provided by Order 37(2) has been issued-to the defendant and, therefore, he cannot be made to suffer for non-compliance with the, provisions of Order 37. Unless the defendant had an occasion to consult his counsel, he could not be presumed to know that he had to enter his appearance within ten days.

12. The second argument of Mr. Qazi that due to bad weather the defendant could not make the relevant documents available to his counsel at Srinagar, as the defendant was served at Delhi, and that it had caused some delay in entering his appearance in the Court, i think this too is a question of fact, which is a matter of evidence.

13. The perusal of AD shows that the notice (though not in the proper form) was received by the defendant on 29-11-1986. The learned counsel for the defendant filed an application for leave to enter his appearance on 18-12-1986 along with the present CMP for condonation of delay. According to Mr. Tikku, there is a delay of nine days, which cannot be condoned. No doubt, under the law of limitation, every day's delay is to be counted, unless sufficient cause for such delay is shown.

14. In the present case, I think the very notice issued to the defendant being defective in law, it cannot bind him for the non-compliance of its provisions. This itself is a sufficient cause to condone the delay.

15. In view of what has been said above, I accept the prayer of the defendant made in this CMP and condone the delay in entering his appearance in the court. The defendant has now become fully aware about the provisions of Order 37 and has full knowledge of the case he has to meet. He is also represented by a counsel, and therefore, no fresh notice in Form 4 supra needs to be issued to him. It shall be deemed now that notice under Order 37 in Form 4 has been issued to him, and he has received the same, and also that he has entered his appearance within time prescribed therein. This shall dispose of CMP No. 846-A of 1986 only.