Introduction:

In a landmark judgment, the Jammu and Kashmir and Ladakh High Court quashed an ex parte judgment passed by the 4th Additional District Judge, Srinagar, where the defendant was not served with a summons for judgment. The High Court ruled that a defendant is only required to apply for leave to defend a suit after being served with a summons for judgment, as mandated by Rule 3 of Order 37 of the Civil Procedure Code (CPC). This decision arose from a case where Nisar Ahmad Rather, the petitioner, challenged an order dismissing his application to set aside an ex parte judgment and decree passed in favor of Tajamul Ahmad Reshi, the respondent.

Tajamul Ahmad Reshi filed a suit under Order 37 of the CPC seeking recovery of Rs. 35 lakh from Nisar Ahmad Rather. Rather appeared before the trial court on two occasions, with his counsel requesting time to file a Vakalatnama. Subsequently, the Vakalatnama was produced, and the matter was adjourned. However, on the next date, neither Rather nor his counsel appeared, and the trial court noted that no application for leave to defend had been filed. Consequently, the court passed an ex parte judgment in favor of Reshi.

Rather, in his petition before the High Court, challenged the trial court’s order dismissing his application to set aside the ex parte judgment and the original ex parte judgment itself. He contended that he was unable to appear in court due to his arrest from February 2, 2023, to April 21, 2023. Moreover, he argued that he was not served with the summons for judgment in the prescribed form.

Arguments of Both Sides:

Rather argued that the trial court had not served him with a summons for judgment, which is a mandatory step under Order 37 of the CPC. He also contended that his inability to appear in court was due to his arrest, which prevented him from filing an application for leave to defend. Rather emphasized that the summons for judgment was crucial, and its absence violated the mandatory procedures outlined in the CPC.

Reshi maintained that Rather failed to apply for leave to defend within the stipulated time, leading to the ex parte judgment. He argued that the trial court’s decision was justified as Rather and his counsel did not appear on the designated dates, and no application for leave to defend was submitted.

Court’s Judgment:

Justice Sanjay Dhar, after considering the arguments, ruled in favor of Rather. The court observed that the trial court had not issued or served a summons for judgment upon Rather, a crucial step under Rule 3 of Order 37 of the CPC. The High Court clarified that a defendant is only required to apply for leave to defend after being served with a summons for judgment. Justice Dhar emphasized that the provisions of Rule 3 of Order 37 are mandatory and admit no deviation. The court found that the trial court’s observation that the plaintiff was entitled to judgment due to the defendant’s failure to apply for leave to defend was not in accordance with the law.

The High Court noted that Rather’s address was available in the plaint and his counsel had filed a Vakalatnama. Therefore, there was no valid reason for the trial court’s failure to serve the summons for judgment. Justice Dhar highlighted that the address was accurate, and the petitioner had not claimed to reside elsewhere. The court concluded that the trial court had not followed the mandatory provisions of Order 37 of the CPC.

As a result, the High Court allowed Rather’s petition, setting aside the impugned order and the ex parte judgment passed by the trial court.