O.37 R.3 CPC | Defendant Not Obliged To Apply For Leave To Defend Without Service of Summons: J&K High Court

Clarifying the legal position on the issue Justice Sanjay Dhar explained,

“Rule 3 of Order 37 of CPC it is clear that a defendant is obliged to apply for the leave to defend only after he has been served with summons for judgment and he has to make such application within a period of ten days of service of summons for judgment”

Background:

Nisar Ahmad Rather, the petitioner, challenged an order passed by the 4th Additional District Judge, Srinagar, dismissing his application to set aside an ex parte judgment and decree passed against him in favor of Tajamul Ahmad Reshi, the respondent.

The case originated with Reshi filing a suit under Order 37 of the Civil Procedure Code (CPC) seeking recovery of Rs. 35 lakh from Rather. Rather appeared before the trial court on two occasions and his counsel sought time to file Vakalatnama.

On a subsequent date, counsel for Rather produced Vakalatnama and the matter was adjourned. On the next date, neither Rather nor his counsel appeared, and the trial court recorded that an application seeking leave to defend had not been filed. The court then proceeded to pass an ex parte judgment in favor of Reshi.

In his petition before the High Court, Rather challenged both the trial court's order dismissing his application to set aside the ex parte judgment and the original ex parte judgment itself.

He had contended that he was arrested on February 2, 2023, and released on April 21, 2023, which prevented his appearance in court. He also argued that the summons for judgment in the prescribed form had not been served upon him.

Court Observations:

After considering the rival contentions Justice Dhar noted that the trial court had not issued or served a summons for judgment upon Rather. The court then delved into Order 37 of the CPC, explaining the sequence of procedures to be followed.

The court added that a defendant is only required to apply for leave to defend after being served with a summons for judgment.

“The provisions contained in Rule 3 of Order 37 of CPC are mandatory in nature and the same admit of no deviation. Therefore, the observation of the trial court that because the defendant had failed to apply for leave to defend as such plaintiff is entitled to judgment, is not in accordance with law”,the bench underscored.

The High Court further noted that Rather's address was available in the plaint and his counsel had filed a Vakalatnama. Therefore, the court emphasised that there was no reason why a summons for judgment could not have been served on Rather.

“Therefore, it is not a case where address of the petitioner was not available with the trial Court, nor is it a case where the petitioner had claimed that he was actually residing at a place different from the one recorded in the title of the plaint”, the bench remarked.

Finding that the trial court had not followed the mandatory provisions of Order 37 of the CPC, the High Court allowed Rather's petition.

The impugned order passed by the trial court was thus set aside.

Case Title: Nisar Ahmad Rather Vs Tahir Ahmad Reshi

Citation: 2024 LiveLaw (JKL) 187

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