ORDER
1. The revision petitioner is the defendant in the suit OS No.3608 of 1998. The respondent herein is the plaintiff, who laid the said suit for recovery of an amount of Rs.59,090.25 ps. The suit was filed invoking summary jurisdiction under Order 37 of the Civil Procedure Code (for short ‘the Code’). The basis for the suit claim was that the plaintiff orally agreed to carry out the construction work at the defendant’s house on labour contract basis. As per the terms of the contract, the defendant should supply the material for construction and the plaintiff should engage the labourers for such construction work. Accordingly, the plaintiff carried out the construction work and prepared a statement of account for the work done. As per the statement arrived at between the plaintiff and the defendant, the defendant agreed to pay a sum of Rs.1,87,589.25 ps. and further agreed to pay 10% more of the said amount working out to Rs.18,758/-. After deducting the amounts paid by the defendant, still he was due to the tune of Rs.59,090.25 ps. for which ultimately the plaintiff laid the suit.
2. Pursuant to the summons served upon him, the defendant appeared before the Court through his Counsel. Later, it appears that he filed a petition under Order 37, Rule 3(1) of the Code seeking permission to defend the case in SR NoS.3661 and 3662 of 1998 on 3-9-1998. He was waiting for the requisite notice to be issued by the plaintiff under the mandatory provisions of Order 37, Rule 3(3) of the Code. He did not know the proceedings of the Court till 5-10-1998. In the meanwhile, the suit was decreed ex parte. Therefore, he filed IA No.2047 of 1998 for condoning the delay of 35 days occurred in the process of filing the concomitant petition in IA No.839 of 1998 seeking to set aside the ex parte decree under Order 37, Rule 7 of the Code. Since the petition filed by him seeking leave to defend in SR No.3661 and 3662 of 1998 had been returned on some office objection and as it had not been re-presented in time, he filed IA No.838 of 1998 seeking enlargement of time under Section 148 of the Code and to condone the delay of 74 days in re-presenting the petition SR No.3661 and 3662 of 1998.
3. The respondent plaintiff filed his counter in IA No.2047 of 1998 resisting the application pleading, inter alia, that the affidavit filed in support of the petition was not given by the party himself and that he filed the application contrary to the provisions of Order 37, Rule 3(1) of the Code and that there was no explanation for the delay.
4. After hearing both sides, the Court below dismissed the petition in IA No.2047 of 1998 on the premise that the person, who had given the affidavit, was not the party and each day’s delay was not explained. Consequent upon the orders passed in IA No.2047 of 1998, the Court below dismissed the other two petitions. Therefore, the petitioner-defendant filed CRP No.918 of 2000 against the Orders passed in IA No.2047 of 1998, CRP No.1161 of 2000 against the Orders passed in IA No.828 of 1998; and CRP No.1290 of 2000 against the Orders passed in IA No.839 of 1998.
5. Certain facts, which are not contentious, may be set forth at the outset for brevity and better understanding of the matter. The suit summons was served upon the defendant-revision petitioner on 27-8-1998. The defendant put in his appearance through a Counsel on 3-9-1998. On the same day, he filed the petition seeking leave to defend in SR No.3661 and 3662 of 1998. That petition was returned with an office objection on 22-9-1998. The suit was decreed ex parte on 5-10-1998. He filed the petition seeking to set aside the ex parte on 10-12-1998.
6. The objections taken by the Office while returning the petition and the vakalath were two fold, namely, (1) as to how the petition is maintainable, and (2) memo of appearance is not filed. Before filing that application into Court, notice was served upon the opposite Counsel, who endorsed on the petition itself in token of having received the copy, to the effect that ‘subject to filing of counter’. That petition was filed on 3-9-1998 and obviously it was returned on 22-9-1998. The party cannot legitimately be expected to see whether his application was entertained or if any objection was taken, to re-present the same by answering the objection. In ordinary course, either the Counsel or his clerk is expected to attend the same. One legal objection raised in this case on the side of the respondent-plaintiff was that no notice of appearance was given to the Counsel of the plaintiff and, therefore, there was non-compliance of the legal requirement under sub-rule (3) of Rule 3 of Order 37 of the Code. It is the contention of the petitioner, on the other hand, that he appeared through a Counsel, who filed his vakalath and that he filed an application seeking leave to defend after issuing notice to the Counsel of the respondent. Therefore, there has been every compliance of the legal requirements. Rule 3 of Order 37 of the Code, which is germane for consideration in the context may be extracted hereunder insofar as it is relevant for the present purpose.
“Order 37, Rule 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 3, serve the defendant a copy of the plaint and annexures 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 notices on him.
(2) Not necessary.
(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 pre-paid 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 from 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 judgment, by affidavit or otherwise disclosing 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 that 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………………………………
(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 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 or 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 of defendant in “entering an appearance or in applying for leave to defend the suit.”
7. On a perusal of the above provision, what is obvious is that upon receiving the suit summons, the defendant shall enter his appearance within 10 days thereof, either in person or through his pleader and he should file in Court his address for service of notices. On the date of his appearance, notice of appearance shall be given to the Counsel of the plaintiff. When the defendant puts in his appearance, it is obligatory on the part of the plaintiff to serve summons for Judgment in Form No.4-A of Appendix-B of the Code. Within 10 days thereafter, he may apply to the Court for leave to defend mentioning, inter alia, the grounds, which are sufficient to defend himself in the suit.
8. The grievance of the respondent herein-plaintiff was that no notice was given to his Counsel so soon after the defendant put in his appearance in accordance with sub-rule (3) of Rule 3 of Order 37 of the Code. That notice is envisaged under the provisions so as to enable the plaintiff to serve the summons in Form No.4A of Appendix-B of the Code. It becomes obligatory on the part of the defendant to apply for leave to defend within 10 days after receipt of the summons in Form No.4A.
Till such time he received the summons in Form No.4A, the period of limitation for applying to the Court seeking to defend will not start. There is no limitation prescribed for the plaintiff to serve the summons in Form No.4A after coming to know the appearance of the defendant either in person or through his Counsel. It is not complained before the Court that neither the notice nor the summons in Form No.4A was served upon the defendant by the plaintiff. Admittedly, he filed the petition seeking leave to defend within 10 days of his appearance, inasmuch as the summons was served upon him on 27-8-1998 and he entered his appearance on 3-9-1998 and on 3-9-1998 itself notice was given to the Counsel for the opposite party on the application seeking leave to defend. He did not wait till the requisite summons under Form No.4A of Appendix B of the Code had been served upon him by the plaintiff. Thus there has been compliance of the requirement under sub-rule (3) of Rule 3 Order 37 of the Code. I, therefore, see no force in the contention on the side of the respondent plaintiff that there has been non-compliance of the mandatory requirement under sub-rule (3) Rule 3 of Order 37 of the Code.
9. Apropos the other contention that the affidavit in this case was given by the clerk of the Counsel in support of the petition but not by the party himself, certain Civil Rules of Practice are to be noticed. Rule 59 under Civil Rules of Practice obligates that every interlocutory application shall be supported by an affidavit and copies of the application, affidavit, and the documents annexed to the affidavit, if any, which are intended to be used by the deponent, shall be furnished to the opposite side. As per Rule 54, the interlocutory application shall state the provision of law under which it is made and the relief sought for in clear and precise terms and it shall be signed either by the applicant or by his Counsel. As per Rule 48, every affidavit should contain the statements made on information or belief of the deponent and shall further contain the source or ground of information or belief. A combined reading of these rules of Practice prescribed by the High Court with the previous approval of the Governor of Andhra Pradesh, shows that the interlocutory application need not necessarily be signed by the party himself. It can either be signed by the party himself or his Counsel. Every interlocutory application shall be accompanied by an affidavit, which affidavit should contain the statement of facts made on information or belief of the deponent and the source or ground of such information or belief. Nowhere, it has been mentioned that the affidavit filed in support of the petition shall be given by the party himself. Anybody, who is conversant with the statement of facts, which are necessary to be furnished for maintaining an interlocutory application, can therefore, give the affidavit. I am reinforced in my above view by a Judgment of this Court in Hussaini Begum v. B. Ramachandraiah, 1976 (1) An. WR 325.
10. Here, in the instant case, the defendant put in his appearance on 3-9-1998 through his Counsel, who filed his vakalath. On the same day, he filed an application seeking leave to defend, after issuing notice to the Counsel of the plaintiff, who endorsed on the overleaf of the petition itself. The party legitimately expects an Order from the Court on his application. Return of the application on some office objections, and compliance of the objections taken by the office, might not be known to the party. In ordinary course, the Counsel appearing for the party would attend to such things. That application seeking leave to defend was admittedly returned by the office on 22-9-1998 and admittedly ex parte decree was passed on 5-10-1998. For the laches on the part of the Counsel in taking return of the application and re-presenting the same after complying with the office objections, the party cannot be blamed and, in the interest of justice, he shall not be put to loss. One of the objections taken by the office was as to how that application was maintainable, which is expected to be answered by the Counsel. The other objection, of course, is not a major objection, as the necessary memo of appearance should be filed. Had this objection been complied with, the defendant would not have been set ex parte and the suit would not have been decreed ex parte. It, therefore, necessitated the clerk of the Counsel for the defendant to file his affidavit mentioning the statement of facts in support of the petition to set aside the ex parte decree. He can legitimately give the source and grounds of information as he was attending to the file, being the clerk of the Counsel. The clerk of the Counsel will be in a better position than the party himself to furnish such information. If the party were to state such facts, again he should get the information from his Counsel or the clerk of his Counsel.
11. Under the circumstances, I see no legal bar in giving the affidavit by the Pleader’s clerk himself in support of the petition filed in this case seeking to set aside the ex parte decree. There is no legal bar, as discussed supra, to give the affidavit either by the Counsel or by his clerk or by some third party, on behalf of the party who is filing the petition. Who should give the affidavit in support of a particular interlocutory application, of course, depends upon the facts peculiar in each case. Therefore the observation of the Court below that the affidavit has not been filed by the party himself and in consequence thereof, the petition should fail, cannot, therefore, legally be sustained. In view of the various dates set for the supra, I am inclined to accept that there is sufficient ground for defendant for seeking to set aside ex parte decree passed against him. The impugned Order, for the above reasons, is liable to be set aside and the suit be restored to file. On such restoration, the Court below should proceed to consider the application filed by the defendant seeking leave to defend on its own merits.
12. In the result, the Civil Revision Petition No.918 of 2000 is allowed. Consequently, the other two Civil Revision Petition Nos.1161 and 1290 of 2000 also stand allowed. Under the circumstances, no order as to costs.