JUDGMENT
Devinder Gupta, J.
(1) This is defendant’s application under Section xxxvII Rule 4 of the Code of Civil Procedure (for short “C.P.C.”) for setting aside the decree passed on 22nd August, 1991 and for grant of leave to defend the suit.
(2) Plaintiff filed the suit for recovery of Rs. 2,68,791.77 against the defendants under Order xxxvII Civil Procedure Code . It is not in dispute that defendants were served with the summons in the suit by publication in “The Statesman” in its issue dated 28th July, 1988 and that the defendants had put in appearance on 17th August, 1988. After the defendants had put in appearance, plaintiff moved an application (I.A.2241/89) for judgment alleging that appearance had not been put in by the defendants within the statutory period of limitation. The said application of the plaintiff was dismissed on 23rd October, 1989 when the Court condoned the delay for entering appearance. While deciding the application, it was held that the defendants had been served through publication in “The Statesman” and since the said publication did not contain the copies of the documents relied upon by the plaintiff, therefore/ in view of the decision in Punjab & Sind Bank v. Ramji Dass Khanna and Another, , service on the defendant was not complete by mere publication.
(3) Plaintiff moved an application (I.A.4790/90) under Order xxxvII read with Section 151 Civil Procedure Code . for issuance of summons for judgment. On 8th July, 1991, it was noticed that summons for judgment in the prescribed form for 12th September, 1990 had been received back duly served and despite service defendants had failed to move any application for leave to defend within the stipulated period. The case was directed to be posted in Court.
(4) In the meanwhile, application (I.A.8298/91) was moved by the defendants seeking condensation of delay in filing application for leave to defend praying that since defendants had not been supplied with copies of the plaint, annexures, affidavit and documents, therefore, the plaintiff be directed to supply the said documents to enable the defendants to apply for leave to defend. The said application was rejected on 22nd August, 1991 and consequently the suit was decreed on the same day.
(5) The defendants on 24th September, 1991, moved the instant application for setting aside the decree. It is alleged in the application that admittedly the defendants were served through publication and as per the Court’s order the plaintiff had not supplied to the defendants copies of plaint, documents, annexures to the plaint and affidavit, therefore, defendants were handicapped in seeking leave to defend. Since defendants were served only with a copy of the application, which did not contain the particulars of the suit, therefore, defendants had also sought condensation of delay in moving the application and has also prayed for directions for supplying the documents.
(6) Plaintiff has opposed the application on the ground that application for leave to defend was not filed within the statutory period and the Court rightly dismissed the application for condensation of delay and rightly passed the decree, which cannot be set aside.
(7) I have heard learned Counsel for the parties who have taken me through the record.
(8) From the facts, as noticed above, and from the order sheet, it has to be inferred that defendants were never supplied copies of the plaint, annexures and documents. The order passed on 23rd October, 1989 is clear in that regard. Court proceedings, as recorded thereafter, also suggest that neither copies of the plaint nor documents were ever supplied by the plaintiff to the defendants. Plaintiff only moved an application for issuance of summons for judgment (I.A.4790/90) and only a copy of this application was served on the defendants along with summons for judgment. Defendants could not have, in the absence of plaint and documents, applied for leave to defend and for that reason alone, while moving application (I.A.8298/91), had prayed that plaintiff be directed to supply copies of the plaint and documents. Despite service of the copy of this application on the plaintiff, no effort was made by the plaintiff to supply such copies to the defendants. The Court rejected the application on a technical ground that since this was an application for condensation of delay in moving application for leave to defend and since there was no separate application moved seeking leave to defend, therefore/ the application was not maintainable. Facts, as noticed above, are not sufficient but cogent enough to set aside the decree passed in plaintiff’s favor and for the self same reasons also defendants are entitled to contest the suit on merits. The application is accordingly allowed/judgment and decree is set aside and unconditional leave is granted to the defendants to contest the suit. S.1144.86
(9) Let the plaintiff supply copies of the plaint and documents to the defendants within a period of two weeks from today. Defendants to file their written statement within a period of four weeks thereafter.
(10) It is, however, made clear that no further time will be granted to the defendants for filing the written statement and in case the written statement is not filed within the period allowed, right to file the same shall stand closed.
(11) List before the Deputy Registrar on 12th September, 1995 for admission/detail of documents and in Court on 18.9.1995 for issues.