Code of civil procedure order 37
Adv B.B.Gambhir #9814820602
(Querist) 19 July 2013
This query is : Resolved
respected sir,
I, filed a suit for recovery of rs. 450000/- under order 37 and affidavit and certified copies of all documents without annexeure the same. i send the summons as prescribed in cpc. the defendant appeared after 19 days from the service of summons and moved application that service was effected through his wife so his appearance may be treated as with in time.
i filed reply to the application now the case is fixed for considertaion on application on 22.07.2013. now i came to know that the after appearance of defendnat i should have served him 2nd time another summons i.e. summons for judgment along with affidavit but i did not do the same
the plaintiff after filing of suit has gone abroad without appoiniting any attorney.
my question is what is remedy for me now.
Guest
(Expert) 19 July 2013
Your query is not very clear. But I can clarify to what I can understand - In a suit u/O.37 (Summary Suit) the defendant shall file vakalat within 10 days from the date of receipt of summons(which is most important), whereas you said the defendant appeared after 19 days, which is illegal and the court should have rejected his vakalat. Hence you may oppose the same and straightaway pray for the Decree in your favour.
2. Next stage, if the vakalat was filed in time, the defendant should have filed Leave for Defend application to defend himself. You may file counter.
3. Suppose after allowing the same by the Court, you shall serve Suit summons, etc., and proceed with regular trial.
R.K Nanda
(Expert) 19 July 2013
argue strongly on said application and get it
dismissed by court and then pray to court to
decree ur suit.
Nadeem Qureshi
(Expert) 19 July 2013
Dear Querist
as per Order 37 of CPC it is mandatory to send summon for Judgement. But I completely agree with Mr. Nanda
Advocate Bhartesh goyal
(Expert) 20 July 2013
As per Order 37 Rule of cpc defendant has to appear before court within 10 days of receipt of summons of o 37 r 2 and also has to submit an address for his service.If defendant had not filed an address for service[which is mandatory] than argue on this point and get the applicaton rejected else file summon for judgment in form no 4A Appendex B.
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 annexure 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 notice on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.
(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a prepaid letter directed to the address of the plaintiff’s pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed fr6m time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.
(5) The defendant may at any time within ten days from the service of such summons for It's affidavit or otherwise d such facts as may be deemed sufficient to entitle him to defend , apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the court or judge to be just:
Provided that leave to defend shall not be refused unless the court-is-satisfied.*hat the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.
(6) At the hearing of such summons for judgment,—
(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the court or judge may direct him to give such security and within such time as may be fixed by the court of judge and that, on failure to give such security within the time specified by the court or judge or to carry out such other directions as may have been given by the court or judge, the plaintiff shall be entitled to judgment forthwith.
(7) The court or judge may, for sufficient cause shown by the defendant, excuse the delay the defendant in entering an appearance or in applying for leave to defend the suit.
prabhakar singh
(Expert) 20 July 2013
1.On service of summons defendant is expected to appear within ten days from date of service in court after giving notice of appearance to plaintiff or his counsel.
2.Court has power under o.37 itself to condone delay in appearance after service summons,if sufficient reason shown.
3.You in your case need to serve notice of judgement only after delay in appearance is condoned by court.
Guest
(Expert) 20 July 2013
I have enquired with my senior colleagues and find that there cannot be any condonation of delay in entering appearance beyond 10 day period from the receipt of summons. I request Mr.Prabhakar Singh to discuss here how such power of condone delay is given to the Court i.e., under which provision of law or the judgment of SC or HC - only for my academic knowledge pls.
prabhakar singh
(Expert) 20 July 2013
Well i am not as big a lawyer as you or your senior colleagues are hence i chase the law first and seldom rush for any citation.
You may be kind on your self if you desire to reread order 37 and particularly it's below quoted part:
order 37 rule 3 . Procedure for the appearance of defendant.-
Sub rule 7 which runs as "(7) The court or judge may, for sufficient cause shown by the defendant, excuse the delay the defendant in ENTERING AN APPEARANCE or in applying for leave to defend the suit."
prabhakar singh
(Expert) 20 July 2013
AND IT WAS AVAILABLE IN THE TEXT CITED BY Mr. Advocate Bhartesh goyal
prabhakar singh
(Expert) 20 July 2013
DO YOU NEED ANY MORE DISCUSSION WITH ANYBODY?
IF YOU AGREE WITH ME NOW THEN POST THE AGREEMENT HERE ELSE POST THE REASONS OF DISAGREEMENT.
I AM WAITING.
prabhakar singh
(Expert) 20 July 2013
IT APPEARS YOU SHALL AGAIN GO TO YOUR SENIOR
colleagues TO KNOW HOW TO DIFFER NOW????????
Guest
(Expert) 20 July 2013
Yes I agree with you. Thank you.
