Lala Gopal Dass vs Lala Chandra Prakash

Ali, J.

This is an appeal against the judgment and decree of a single Judge of this court in a suit brought by the plaintiff for recovery of Rs. 28,300 under

Order 37 of the Code of Civil Procedure. Along with the plaint, the plaintiff presented an application for attachment before judgment and obtained

an interim order of injunction restraining the defendant from disposing his properties. The suit was based on a promissory note dated 171959 and it

is common ground that after the plaint was filed in the court of the learned single Judge, no summons as required by the provisions of Order 37 rule

2 subrule (2) of the Code of Civil Procedure was ever served on the defendant. The defendant, however, appeared in court through his lawyer

Mr. Sharma in order to contest the application given by the plaintiff for attachment before judgment and injunction. The attachment matter was

considered by the court from date to date and ultimately the suit was ordered to be heard on 181165 and was then again adjourned to 2121965

and then to 22121565. On this date the defendant filed an application supported by an affidavit praying for leave to defend the suit. The learned

Single Judge held that the application filled by the defendant was hopelessly barred by time and he accordingly rejected the application and

decreed the plaintiff's suit.

In support of the appeal Mr. Sehgal has submitted that as no summons was ever served on the defendant as required by the mandatory provisions

of Order 37 rule 2 subrule 2 of the Code of Civil Procedure, the application for leave to defend the suit was within time and the question of

limitation did not arise at all. On the other hand, it was submitted by the counsel for the plaintiff respondent that as the learned Judge has found that

the defendant had knowledge of the suit filed against him, he ought to have filed the application for leave to defend the suit within 30 days of the

knowledge of the suit. There appears to have been serious controversy between the parties on the question as to whether or not a copy of the

plaint presented by the plaintiff was given to the defendant or his counsel. The learned Judge has come to a specific finding that the defendant did

receive a copy of the plaint through Shri Chuni Lal the clerk of Shri Sharma Advocate on 12765. The court below has further held that since Mr.

Sharma appeared for the defendant on various dates after 1271965, it can be safely presumed that the defendant had knowledge of the suit more

than 30 days before the date when he filed the application for leave to defend the suit. This finding of the learned Single Judge was seriously

disputed before us by Mr. Sehgal and he contended that a mere receipt of Mr. Chuni Lal who was a clerk of Mr. Sharma and not duly authorised

by his client to receive the copy of plaint, would not show that the defendant or his counsel had actually received the copy of the plaint. In this

connection, the learned counsel has taken us through various interim orders passed by the court below. It was submitted by Mr. Sehgal that even if

the defendant had appeared to contest the application for attachment before judgment, such an appearance could not be treated as an appearance

in the suit so as to impute the defendant with the knowledge of the allegations made in the plaint I' or to show that the suit was actually instituted |

under Order 37 CPC and not under the ordinary I law. In our opinion, however, the learned Judge has given a very cogent finding on the point as

to when the defendant came to acquire the knowledge of the suit and it is not possible for us to disagree with the findings given by him. A perusal

of the order sheet would clearly show that on several dates Mr. Sehgal and Mr. Sharma appeared for the defendant and a copy of the plaint was

in fact handed over to Shri Chuni Lal the clerk of Mr. Sharma on 1271965 which is corroborated by the endorsement on the file of the court. At

no stage of the proceedings, before the court below did Mr Sharma or Mr. Sehgal make a categorical statement before the court below that the

copy of the plaint which was handed over to Shri Chuni Lal was not given to the counsel for the defendant by Chuni Lal. It is true that on

10111965 counsel for the defendant did make a complaint to the court that they had not been given a copy of the plaint and the court directed the

counsel for the plaintiff to deliver the copy of the plaint to the defendant. A similar prayer was made before the court below on 16121965 and on

20121965. Mr. Prakash counsel for the plaintiff filed an affidavit in which he made a clear allegation that the copy was handed over to Chuni Lal

clerk of Mr. Sharma and who gave the copy of the plaint to Mr. Sharma. Despite this affidavit, Mr. Sharma did not controvert this allegation and

not assert before the court that he had not received any copy of the plaint from his clerk. In these circumstances, therefore, we find, ourselves in

complete agreement with the learned single Judge that the defendant must be deemed to have acquired the knowledge of the present suit on or

about 1 71965. It is obvious when the counsels for the defendant filed their objections to the application for attachment before judgment, they

could not have been in a position to do so, unless they had perused the plaint filed by the plaintiff. Two eminent counsels had been appearing on

several dates and it is difficult to believe that on none of these dates any of the counsels for the defendant would not care to peruse the plaint even

in court. The question of knowledge, however, in our opinion, is not sufficient to decide this case. The second argument put forward by Mr. Sehgal

is that as the mandatory provisions of rule 2 subrule 2 of Order 37 CPC have not been complied with, the application for leave to defend the suit

could not be barred by time. This argument, in our opinion, appears to be well founded and must prevail. Subrule 2 of rule 2 of Order 37 of the

Code of Civil Procedure runs as follows :

In any case in which the plaint and summons are in such forms, respectively the defendant shall not appear or defend the suit unless he obtains

leave from a judge as hereinafter provided so to appear and defend ; and, in default of his obtaining such leave or of his appearance and defence in

pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to decree.

A perusal of this clause makes it very clear that the statute prohibits the defendant from appearing or defending the suit without obtaining

permission of the court in the manner laid down in this subrule. The subrule also contains the penalty for nonappearance as a result of which the

plaintiff's suit has to be decreed and the allegations of the plaintiff would be deemed to be admitted. Order 37 of the Code of Civil Procedure,

makes a serious departure for the trial of the suits from the procedure laid down for the trial of the suit under the other provisions of the Code of

Civil Procedure. The procedure contemplated by Order 37 CPC is both harsh and rigorous and is in the nature of a summary trial. In such suits the

defendant cannot appear or defend the suit as a matter of right but has to obtain the permission of the court within a specified period of time. In

view of these circumstances, we have to construe the provisions strictly giving every benefit of doubt to the subject. Article 159 of the Limitation

Act, provides a period of 30 days to file an application for leave to appear and defend the suit from the date when the summons under Order 37

subrule 2 CPC is served on the defendant. This is the only starting point of limitation mentioned in Art. 159 of the Limitation Act. As it is common

ground that no summons was ever served on the defendant, the starting point of Limitation in the present case, did not reach at all and therefore,

the question of application for leave to defend the suit being barred by time does not arise. Mr. Das argued that the words ""when the summons is

served"" should be construed to include also the date when the defendant acquires knowledge that a suit under Order 37 CPC had been filed

against him. Learned counsel has drawn our attention to the provisions of section 18 subclause (b) of the Land Acquisition Act which runs as

follows :

In other cases, within six weeks of the receipt of the notice from the Collector under section 12 subsection (2) or within 6 months from the date of

the Collector's award, whichever period shall first expire.

It has been contended that the second clause of subsection (b) lays down the period of six months from the date of the Collector's award but it has

been held by various courts in India including the Supreme Court that the period would run not from the actual date of the award but from the date

when the concerned party gets knowledge of the award having been made On a parity of reasoning, therefore, it was submitted that a similar

interpretation should be put on Article 159 of the Limitation Act. We are, however, unable to agree with this contention. The analogy of section 18

(b) of the Land Acquisition Act cannot be applied to Article 159 of the Limitation Act for several reasons. In the first place, the plain language of

the first part of clause (b) lays stress on the fact of the receipt of the notice from the Collector. Thus the statute clearly intends that the starting point

of limitation would be the date of the knowledge of the award either when the party knows about it by virtue of a notice being served or it or

otherwise. Similarly section 18 clause (a) provides a lesser period of limitation where an award is announced in presence of the party of its agent.

Here also the Legislature intends that the knowledge of the award should be the test to determine the starting point. Secondly, the words used in

the second clause of section 18 (b) have to be read together with the words in the first clause because the last words are ""which ever period shall

first expire' and it is. therefore, manifest that when the statute used the words ""from the date of Collector's award"" these words have to be read

ejusdem generis with the words used in the first part of section 18 (b) which gives six ' weeks time from the receipt of the notice from the

Collector. Thirdly, the language of the provisions of section 18 of the Land Acquisition Act and that of Art. 159 of the Limitation Act are

essentially and absolutely different and it is not possible for us to adept a common criterion for interpreting the two provisions of two separate

Acts. Finally, when Art. 159 of the Limitation Act, provides that the starting point of limitation would run from one and one contingency alone,

namely, the date of the service of the summons on the defendant it will amount to importing additional words in the statute, if we were to hold that

the starting point may arise also from the date when the defendant acquires the knowledge of the suit and not only from the date when summons

are served on him under the provisions of Order 37 subrule (2) CPC. Mr. Sehgal rightly pointed out that the language of Order 37 subrule (2)

CPC was mandatory and since a penal clause was provided for default of appearance, it cannot be held that the provisions are merely directory.

Moreover, it is well settled that when a statute provides a particular mode of doing something in a particular manner, any departure from the

manner prescribed by the statute would amount to disobedience of the express provisions of law. We are supported in this view by a decision of

the Sup. Court reported in AIR 1962 SC, 113 and 1694. Moreover on an interpretation of the plain language of Order 37 subrule (2) of the Code

of Civil Procedure, it would appear that the statute lays down in express words that the defendant shall be prohibited both from appearing and

defending the suit unless he obtains permission of the court as laid down in that subrule. The words ""appear"" and ""defend"" are separated by the

disjunctive 'or' and, therefore, the disability imposed by this rule attaches separately both to appearance and to defending. In other words, neither

the defendant can appear in the suit, nor can he defend the suit without complying with the provisions of subrule 2 rule 2 of Order 37 C.P C. The

bar for appearance by the defendant is categorical and the provisions of subrule 2 debar the defendant from appearing at any stage of the suit

either before or after the service of the summons and for any purpose whatsoever without obtaining the leave of the court. We are fortified in our

view by a decision of the Calcutta High Court reported in I. L. R. (1956) Calcutta, 197 A similar view was also taken by the Bombay High Court

in Pestonji Shapurji Narewalla v. Jamshedji Nawroji. Gamadia, AIR 1926 Bombay, 250. In this case the defendant appeared before the District

Judge for the limited purpose of praying to the court that in the event of decree being passed against him, the said decree may be allowed to be

paid by instalments. A division Bench of the Bombay High Court held that as no permission from the court had been taken by the defendants to

appear to defend the suit, the defendant was not entitled to appear in the suit, even for the purpose of praying that a decree by instalments be

granted. In this connection, their Lordships of the Bombay High Court observed as follows :

The important point to notice is that a defendant in a summary suit cannot be allowed to appear while the hearing is proceeding, and in this case, in

my opinion the Judge was wrong in allowing the defendants' attorney to appear before a decree had been passed in accordance with the plaint.

It follows, therefore, that if the statute prohibits the defendant from either appearing before the court or defending the suit, then any appearance

made in express disobedience to the mandatory provisions of Order 37 rule 2 subrule 2 CPC will be destitute of my legal effect and would have to

be completely ignored. It is common ground that in the present case, right from the date when the suit was instituted till 22121965, when the

defendant filed an application for leave to defend the suit, no permission by the court to appear or defend the suit was granted in accordance with

the provisions of subrule 3 of Order 37 of the Code of Civil Procedure. Thus the appearance of the defendant upto 22121965 would have to be

ignored and cannot be interpreted to be an appearance in the suit. It is common ground that no summons had been served in the form prescribed

by the subrule (1) to the defendant upto the date of the decree.

In these circumstances, therefore, the application filed by the defendant for leave to defend the suit could not be rejected as being barred by

limitation but had to be considered by the trial Judge on merits. The learned Judge, however, has not considered the application on merits but

dismissed the same on the preliminary ground that it was barred by limitation. For the reasons, that we have already given, we are clearly of the

opinion that the view taken by the learned Judge is legally erroneous. As the learned Judge has rejected the application, of the defendant for leave

to appear and defend the suit, and has passed a decree in favour of the plaintiff by a composite order, the entire order as also the decree are liable

to be set aside.

We would, therefore allow this appeal, set aside the order and decree of the trial Judge and send this case back to the learned Judge who will

dispose of the application for leave to defend the suit on merits and then decide the suit in accordance with law. Let the Court fees paid by the

appellant on the memo of appeal be refunded to him.

Costs will abide the result.

I agree (Sd.) J. N. Wazir.