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TMI Blog1981 (8) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... g 11.9.1978 for filing objections. On 11.9.1978, the counsel for the defendant was present in court and filed necessary objections against the plaintiff is application for attachment before judgment. The hearing of this application and objections thereon was, then, adjourned for 30th September. 1978. The Court further ordered on that very day that the defendant may file his written statement within one month and further the suit came up for final hearing on 24th October, 1978. In the original record, on the order sheet for 11.9.78 there are there dates written and there are signatures of the counsel also. The case could not, however, be taken upto 30 September., and was posted for disposal of applications on 14.10.1978. On 11.10.78 no written statement was filed but an application was moved later on 23rd October, 1978 requesting for time to file written statement and also praying for condonation of delay. The written statement was actually filed on 25.11.1978. On 24.10.78, the defendant deposited a sum of Rupees 12,000/- with the permission of the court. Admittedly, this amount covers the entire dues payable to the plaintiff on the date. In the Court below, the defendant's cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same city, municipality, notified area or town area. 3. An explanation to this Section was added by means of an amendment in 1976, i.e., prior to the matter in dispute. The Explanation runs in the following language. 4. Explanation:- For the purposes of this sub-Section, - (a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression 'cost of the suit' includes one half of the amount of counsel's fee table for contested suit. 5. According to the Explanation, the first hearing of the suit has been assigned a certain meaning. It is legal fiction which has been created by the statute and, therefore, we cannot assign any other meaning to the words 'first hearing' when used in connection with Section 20(4) of the Act. For all practical purposes while dealing with the concerning Section 20(4) of the Act, therefore, the words 'first hearing' must mean that which is defined in the Explanation. 6. According to the learned counsel for the revisionist since no summons was served, therefore, the explanation would not be at all attracted in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o obtain the presence of the defendant to a claim and to provide full information about the nature of the claim made against him and also of the date when he is supposed to appear in Court to answer the claim. If the defendant party appears before the court after the registration of the suit, and he is informed about the nature of the claim and the date fixed thereto it must be deemed that the defendant has waived the right to have a summons served on him. This can be seen from the record and also from the subsequent conduct of the party. The same legal position will arise when a party suo moto appears before the Court before actual service of summons either himself or through the counsel. In such case if some date is fixed for filing the written statement and for hearing of the suit it would rather be too technical a view to take that service of summons in the ordinary course were still to be insisted upon and to hold that further proceedings in the suit would take place only thereafter. This is neither the purpose nor the way to look at various provisions of the Civil Procedure Code. The whole basis on which the procedure laid down for the service of summons has very elaboratedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 itself should be treated to be a 'summons' to the defendant for the purposes of Explanation to Section 20(4) of U.P. Act. No. XIII of 1972, because from this he got intimation of filing of the written statement as also for the final hearing of the suit. It is this date which must be treated to be the date of 'first hearing' of the suit, within the meaning of Section 20(4) read with Explanation to the Section. 8. It was urged by the learned counsel for the revisionist that waiver must be a conscious act but he has failed to show how this is not so in the instant case. On 11. 10.1978, the written statement was not filed and, therefore, an application was moved on 23rd October, 1978 in which it is clearly stated that the court had granted him time to file written statement within a month on 11.9.78, that due to illness he could not file written statement in time and since his mistake was bonafide the delay should be condoned and further two weeks, time should be granted for filing the written statement. In the face of this statement, it is very difficult to say that he was not acting in the matter consciously or that he had not waived his right to get summons serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and therefore, he was not all prejudiced in any manner and the mere fact that no opportunity was given to the petitioner to file reply would not vitiate the order. This plea of the respondent was repelled. That case is clearly distinguishable from the case in hand. Here the defendant did not make any request to get the copy of the plaint filed by the plaintiff and even sought for extension of time for filing the written statement. The petitioner in the Supreme Court case may have covered all the points which were mentioned in the petition by the opposite parties before the Government but he had a right to file objections to the same and this right was denied to them. In the instant case, the defendant had a right to file written statement in reply to the plaintiff's plaint which he had done and he never objected about that fact. In these circumstances, it cannot be said that the defendant did not have an opportunity of replying to the plaint case set up by the plaintiff. The Supreme Court decision referred to is clearly distinguishable from the facts of present case. 11. On these considerations and in order to place harmonious construction on the wordings of the Explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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