IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 8436 of 2007 PHUSA RAM V/S A.D.J. (F.T.) NO.3,BIKANER & ANR. Mr. VINEET SANADHYA, for the appellant / petitioner Mr. DD CHITLANGI, for the respondent Date of Order : 13.4.2009 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the parties. With the consent of the learned counsel for the parties, the matter has been finally heard at this stage itself. By the impugned order, learned trial court has rejected the petitioner's application filed under Order 37 Rule 4 CPC. The necessary facts are, that the plaintiff non- petitioner filed a suit under Order 37 C.P.C. on the basis of promissory note. After filing of the suit, summons for appearence were issued, on service thereof, the petitioner entered appearance, and submitted his registered address, as appears from the order-sheet of the trial court dated 30.7.2004. Accordingly, summons for judgment were ordered to be issued, and since then, as appears from the record, that summons for judgment were sent by the plaintiff time and again at the address given by the petitioner, but every time, they were returned unserved, on the stock ground of the addressee having gone out in the field, and the house being locked. The report of the process server is not attested by any Motbir, etc. In the totality of the circumstances, it creates a doubt about the genuineness and correctness of the report. Be that as it may. The learned trial court, in such circumstances, on 27.5.2005 ordered, summons to be sent by registered post also, which was also returned, and as appears from the envelop, that the postman had made a report, that the addressee remains out, and has also reported that the addressee refused to receive. It was submitted that report is contradictory, as either he was out or he was refused to receive, but could not be both the ways. This is one aspect of the matter. In my view, from a look at the record, it appears, that two separate reports have been made on two different dates, though dates have not been mentioned and thus, there is no 2 inconsistency therein. In the totality of the circumstances it transpires, that the petitioner had simply been avoiding to receive the summons. The matter does not end here. I have opened the envelop, sent by registered post, and find, that it contained only summons for judgment in Form No.4A, and is not accompanied with anything else. While according to the provisions of Order 37 Rule 3 Sub-rule (4), the said summon is required to be supported by affidavit, verifying the cause of action, and the amount claimed, and stating, that in his belief, there is no defence to the suit. Considering the totality of the circumstances, I am of the view that in the interest of justice, a liberty should be granted to the petitioner to defend the suit, ofcourse, looking to the conduct, on very stringent condition. Accordingly, the petition is allowed. Impugned order is set aside. The petitioner is given liberty to defend the suit, on the condition of depositing a sum of Rs.75,000/- in the trial court within a period of two months from today. The amount so deposited shall be kept fixed deposit by the trial court, in a scheduled bank, for a period, which may yield the best return of interest. Along with depositing the amount, the petitioner will free to file written statement. The learned trial court will then try 3 the suit. The amount so deposited by the petitioner will follow the consequences of the suit. The parties shall bear their own costs. ( N P GUPTA ),J. /praveen/ 4