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CS209of 2016 has been filed praying for a decree for a sum of Rs.11,50,000/- from the defendant which is evident from the summons which was issued by this Court.
Admittedly, the suit is under Order 37 of the Code of Civil Procedure.
At the instance of the plaintiff the matter was brought in the list on 5th May, 2017 contending, inter alia, that no written statement was filed by the defendant despite they had entered appearance.
Such order was recorded on 5th may, 2017.
By the order dated 5th May, 2017 the suit was fixed on the category of undefended suit.
After such order was passed the defendant has come up with an application being GA1915of 2017.
From the Masters summons filed in connection with GA1915of 2017, it appears that the defendant has prayed for recalling of the order dated 5th May, 2017 and to allow such defendant to file written statement.
The said application has been contested by Mr.Mukherjees client, plaintiff, by filing affidavit in opposition.
In paragraph 3 of the application it has been contended that the defendant did not sign the postal acknowledgement card as has been mentioned in the report of the Sheriff.
The application also discloses that the defendant could not contact his learned advocate but ultimately it is found that the learned advocate has filed his Vokalatnama on 20th December, 2016.
It is undisputed fact that after filing Vokalatnama on 20th December, 2016, the defendant has not come up with any prayer for leave to defend the suit because the suit has been filed under Order 37 and the rules laid down under said order prescribes that the defendants duty is to appear before the Court and to make a prayer for leave to defend the suit and to show that he has substantial case to oppose the prayer made in the plaint but that has not been done by the defendant.
On the contrary, he has come up with this application to adjudicate that summons has not been properly served upon him although the report furnished by the department shows that attempt was made to effect service upon the defendant under Order 5 Rule 9 and Rule 9A of the Code of Civil Procedure.
So far Order 5 Rule 9 is concerned, the Court shows that the summons was received by the defendant after putting his signature on the said summons but so far compliance of Rule 9A is concerned it is apparent from the postal acknowledgement card that the defendant has not signed the said AD card.
Therefore, it is for Court to ascertain whether the service within the meaning of Rule 9A has been complied with or not.
Be that as it may, admittedly, the defendant immediately after filing the Vokalatnama has not resorted to provision of Order 37 which he could have easily taken and made a prayer before this Court.
Such lackadaisical manner in which the learned advocate for the defendant has proceeded cannot be appreciated and, however, for such laches on the part of the advocate, it is true that the client should not be penalized but at the same time the way the defendant has proceeded with the matter appears to be harassing for the plaintiff and for which some cost should be awarded against the defendant.
Order 37 Rule 3 prescribes that 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 annexures thereo and the defendant may, at any time within 10 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 a notice on him.
Learned counsel appearing for the defendant submits that it is true that he has filed Vokalatnama, entered appearance but he really want to agitate before the Court that the summons which was served upon the defendant was not accompanied by copy of the plaint as a result of which it was difficult for the defendant to come before the Court to seek leave to defend.
This submission of the defendant may be accepted but it is difficult to believe that the defendant in spite of knowing the institution of suit under Order 37 of the Code would not come forward before the Court to pray for leave to defend.
The defendant has not even made any prayer in the present application seeking leave to defend.
Learned counsel submits that unless the court passes an order directing a plaint be served upon the defendant, the plaintiff could not come forward before the court with a prayer for leave to defend.
Mr.Mukherjee, appearing for the plaintiff submitted that the defendant knowing fully well that the suit is under Order 37 evaded to comply with the provisions, however, he has not given any notice to the learned Advocate for the plaintiff as required under rule 3 of Order 37 and that having not been done his defence should be struck off and he should be prevented from getting any opportunity to file written statement in the suit.
He submits that since this suit has already been fixed for hearing as an undefended suit the defendant at this stage cannot make any prayer for recall of the order dated 5.5.2017.
Therefore, the suit should proceed ex parte.
This submission of Mr.Mukherjee can also not be accepted altogether because in a summary proceeding under Order 37 even if it is assumed that the defendant after filing vakalatnama has not intimated anything to the plaintiff and if it is to be presumed that the defendant has not entered appearance in the suit then also for any ex parte order the plaintiff is under obligation to issue fresh summons for judgement before passing of ex parte decree which has not yet been complied with by the plaintiff.
However, to that effect he has filed an application being GA2105of 2017.
He submits that purpose for filing this application is really to comply with the procedure for summons for judgment as required under sub rule 4 of Order 37.
Having heard the parties and considering the submissions made by them at length and the submissions made in the application it appears that even if the suit is to be decided ex parte then summons for judgment has to be issued under Order 37(3)(4) and if the application being GA2105of 2017 filed by Mr.Mukherjees client is allowed then the next couRs.of action is to issue summons for judgment and even then the defendant might get an opportunity to come before the Court with a prayer for leave to defend and in that case perhaps it will not be reasonable for the Court to shut the defendant out of Court so that he cannot defend the suit.
In such circumstances, although this Court is not happy with the way in which the defendant has dealt with the proceeding but at the same time for default of the learned Advocate the defendant should not suffer.
Keeping in view the ongoing matters in mind I am inclined to give one more opportunity to defendant to come up with an application for leave to defend and the said application the defendant cannot file unless the order dated 5.5.2017 is recalled taking the suit out of the ex parte board.
Accordingly, the order dated 5.5.2017 is recalled subject to payment of cost of Rs.20,000/- to be paid by the defendant to the learned Counsel for the plaintiff.
Upon payment of such cost the defendant will be entitled to come up with a prayer to leave to defend the suit.
If the defendant intends to seek leave to defend the suit steps have to be taken within one week after Vacation failing which no further scope will be kept open for the defendant to defend.
In view of the aforesaid order this Court does not intend to dispose of the application being GA2105of 2017.
Necessary orders will be passed one week after Vacation when the matter will next appear in the list.
Let GA2105of 2017 appear as Motion Adjourned one week after ensuing Puja Vacation.