JUDGMENT
B.N. Kirpal, J.
(1) This case has been listed before the Division Bench on a reference having been made by one of us (B.N. Kirpal, J.) to decide the following question: "WHETHER the provision of Order 37(2)(l) is mandatory io a sense that if it was not complied, then the plant will not be regarded as under Order 37 or is it directory so that if there is substantial compliance of Order 37 rule 2, then the plaint will not be regarded as not being under Order 37." (2) Briefly stated the facts are that the plaintiff filed a suit for the recovery of Rs. 1,50,502/10. The case of the plaintiff was that the defendant had issued one cheque for Rs. 1,16, 455.50 against the sale of goods which cheque was dishonoured. The plaintiff also claimed interest of 42,546.60 at the rate of 18% per annum. After giving a credit of Rs. 8,500.00 for which payment had been made, the balance amount claimed by the plaintiff in the suit was Rs. 1,50,502/10. (3) In the plaint, the plaintiff had stated, . after the parties name, as follows: "SUITFOR The Recovery Of RS. 1,50,502/10 Under Order 37 Civil Procedure Code ." Farther, in paragraph 3 of the plaint, it had been stated by the plaintiff as follows: "THAT the plaintiff has filed this suit under Order 37 Civil Procedure Code and desires to file the same under the said order. The suit is based on the cheque which has been issued by the defendant in favor of plaintiff which on presentation, was returned with the remark 'REFER TODRAWER'. The relief prayed in this suit falls within the ambit of Order 37 Rule 2 Civil Procedure Code.
(4) Summons were issued to the defendants in the requisite form treating the said suit as having been filed under Order 37. Appearance was entered into by the defendants within time. Thereafter summons for judgment were taken out. The defendants did not apply for leave to defend. According to the defendants, they were not given the requisite opportunity of filing an application for leave to defend because summons for judgment were never served on the defendants. This aspect of the matter we need not go into as it is not relevant for the plaint in issue.
(5) When the case came up before the Single Judge for passing appropriate orders, on default having been committed with regard to applying for leave to defend, a contention was raised on behalf of the defendants to the effect that the suit itself should not have been treated as having been filed under Order 37 Civil Procedure Code The submission was that the plaintiff bad not complied with the mandatory provisions of Order 37 Rule 2(l)(c) inasmuch as immediately below the number of the suit the words “Under Order xxxvii of the Code of Civil Procedure, 1908” had not been written. In support of this submission, the learned counsel had relied upon a Single Bench decision of this Court in the case of Syndicate Bank v. Tube Fabrico and Ors. 1.A. No. 889 of 1985 in Suit No. 625 of 1981 wherein A.B. Saharya, J. had observed that non-compliance, in the manner indicated above by the defendants’ counsel, would entitle the defendant to obtain leave to defend.
(6) It was felt that the aforesaid decision required re-consideration in view of the fact that there had been substantial compliance with the provisions of Order 37 Rule 2(l)(c) as the words “Under Order 37 Civil Procedure Code .” had been written in the cause title of the plaint but below the parties name. For this reason, the case was referred to a Larger Bench and that is how it has been listed before us.
(7) On behalf of the defendants, it has first been contended that the provisions of Order 37 Rule 2 are mandatory. It is submitted that the said rule has to be strictly construed and if there is non-compliance with the provisions thereof then the suit should be regarded as having been filed in the ordinary manner and not under the special procedure prescribed by Order 37 Civil Procedure Code According to the learned counsel, there has been non-compliance with the provisions of Order 37 Rule 2(1)(b) and (c).
(8) The first thing which has to be considered is whether the provisions of Order 37 Rule 2 are mandatory or directory. As already noted, the submission of the learned counsel for the defendants is !hat the said rule, on its plain reading, discloses that it is mandatory. The learned counsel submits that Rule 2(1) uses two words, namely, “may” and “shall” in the same sentence. It is submitted that the use of these two different words show that whereas it is not mandatory for the plaintiff to file a suit under Order 37 and a plaintiff has an option whether to take recourse to the special procedure provided by Order 37 or not but, while presenting the plaint, the plaintiff must see that the plaint contains the particulars specified in the said rule. The use of the word “shall” indicates that the rule is mandatory in nature. In support of his contention, the learned has strongly relied upon the decision of Karnataka High Court in Jatin Khama v. Prema G. Vital, 2nd 1979(2) Karnataka 1592, in addition to the aforesaid decision of this Court in Syndicate Bank’s case. Learned counsel also relied upon Satya Narain v. Dhuja Ram aud Ors., and Sharif-ud-Din v. Abdul Gani Lone, wherein it was held by the Supreme Court, dealing with Section 81 of the Representation of the People Act, that if the provisions of the said section were not complied with then the election petition has to be dismissed because the said provisions are mandatory in nature.
(9) Shri Nayar, the learned counsel for the plaintiff, has, however, submitted, while relying upon Sharif-ud-Diris case (supra), that the provisions of Order 37 Rule 2 are directory in nature. The learned counsel submits that the Supreme Court in the aforesaid case has held that a rule would be mandatory only if the non-compliance of the same leads to some penal or specific consequences. The learned counsel submits that Order 37 does not provide that non-compliance of the provisions of Rule 2 would lead to any specific consequence. It is further submitted by the learned counsel that if the defect can be rectified by an order of the Court then such a provision cannot be regarded as mandatory.
(10) The plain reading of Order 37 Rule 2 shows that the Legislature was particular as to what should be contained in a plaint filed under Order 37. Prior to the amendment in 1976, Order 37 did not provide or refer to the form of the plaint. This provision has been inserted only with the amendment. The Legislature has advisedly used two words in Order 37 Rule 2(a), namely, “may” and “shall”. When two such words, namely, “may”, which indicates that there is a discretion which is given, and “shall” are used, then the rules of construction are that these two words should be given their ordinary meaning. ‘May’ has to be understood as may and ‘shall’ has to be understood as shall. Prima facie, therefore, it would appear that the provisions of Order 37 Rule 2 are mandatory in nature and have to be complied with.
(11) It is ture that unlike some of the other provisions of Order 37 which cast a duty on the defendant to take a particular course of action on action on summons being served and which also provide for the consequences on the failure of the defendant to take such course of action, the said order 37 Rule 2 does not specifically provide for any specific consequences to follow in the event of the plaintiff not complying with the provisions of Order 37 Rule 2. Nevertheless, in our opinion, non-compliance of Order 37 Rule 2 would result in certain specific consequences. The consequence of non-observance of Order 37 Rule 2 would, in our mind, be that the suit will have to be regarded as an ordinary civil suit and not one which is filed under Order 37. Non-observance or non compliance with the provisions of Order 37 Rule 2 would not result in the suit being dismissed but must result in the Court regarding the suit as having been filed not under the said provisions of Order 37 but as an ordinary suit. To this extent, therefore, the contention of the learned counsel for the defendants is correct, namely, that Order 37 Rule 2 is a mandatory provision which has to be complied with.
(12) Even though the provisions of Order 37 Rule 2 are mandatory the same have to be interpreted in such a way so that the Legislative intent is given effect to.
(13) The normal procedure as provided in the Code of Civil Procedure is that a defendant has a right to defend and file the written statement whenever a suit is filed. Order 37 is a special procedure which is meant to provide speedy trial and remedy in specific cases. Order 37 has been inserted with a view to assist the plaintiff. When a suit is filed under Order 37. summons are required to be issued in the prescribed form and thereafter the defendant, if it wants to contest, has to enter appearance within 10 days thereof. After appearance is entered, the plaintiff files summons for judgment which are served on the defendant and the defendant thereupon is required to apply for leave to defend under Order 37 Rule 5.
(14) It will be seen from the above that when a suit is filed under Order 37, the defendant is under a disadvantage. He is obliged to enter appearance within 10 days failing which the suit may be decreed. Because of the fact that the right of the defendant to enter appearance and file written statement is restricted, the Legislature thought’ that adequate provision should be made so that when the plaint is received by the defendant, he is put to notice that a suit has been filed under the special provisions of Order 37 and that the normal procedure as provided by the Code of Civil Procedure would not be applicable. It is for this reason that in Order 37 Rule 2 it has been provided that the plaintiff must state three things, namely, that there should be a specific averment that the suit is filed under Order 37 and that no relief which does not fall within the ambit of that rule has been claimed and, furthermore, in the title of the suit it has to be stated that the suit is under Order 37 of the Code of Civil Procedure, 1908. If all these three things are stated then the defendant will not be heard to say that he was not aware of the special requirement of Order 37 because he might have thought the suit was filed in normal course and not under the special provisions of Order 37.
(15) The provisions of Order 37 Rule 2 being procedural in nature, in our opinion, the requirement of the said provision would be satisfied if there has been substantial compliance of the same. In other words, the plaint must show that there has been compliance with the provisions of Order 37 Rule 2(1)(a), (b) and (c). For example, though Sub-rule (b) of Rule 2(1) of Order 37 is cinched in negative terms, in our opinion, there would be substantial compliance of this provision if an averment to this effect is made in positive term by the plaintiff in the plaint. In the instant case, in paragraph 3 of the plaint it has been slated by the plaintiff that “the suit is based on the cheque which has been issued by the defendants in favor of plaintiff which on presentation, was returned with the remark “REFER To DRAWER”. The relief prayed in this suit falls within the ambit of Order 37 Rule Civil Procedure Code,” This, in our opinion, fulfillls the requirement of Order 37 Rule 2(l)(b) even though it is stated in a manner differently than what has been indicated in the said rule.
(16) Similarly, there has been a substantial compliance of the provisions of Order 37 Rule 2( I )(c). It is no doubt true that in Order 37 Rule 2(1 )(c) it is stated that the aforesaid inscription should be “immediately below the number of the suit”. It is with regard to this that A.B. Saharya, J. in Syndicate Bank’s case (supra) had observed that by using the expression “immediately” the Legislature had emphasised on the specific place of the inscription so as to ensure that nothing comes in between the number of the suit and the title of the suit except the prescribed inscription. It was further observed that it was necessary for the plaintiff, if he desires to proceed under Order 37, to make the inscription prescribed under Clause (c) immediately below the number of the suit in the title of the suit. With respect, we are unable to agree with this proposition. Even though the provisions of Order 37 Rule 2 are mandatory in nature, in our opinion, there would be sufficient compliance of the said provision if the inscription provided by Order 37 Rule 2(l)(c) is contained in the cause title of the plaint even if it be inscribed below the name of the parties, as in the present case. The word “immediately” used in Order 37 Rule 2(l)(c) should be construed as meaning that the required inscription should be placed above the narration off acts in the body of the plaint and it should be contained in the cause title itself. The inscription should be so made so as to indicate to the defendant that the suit which has been filed is under Order 37 and is not an ordinary money suit. The expression used in Order 37 Rule 2(l)(c) is “immediately thereafter”, It could not be the intention of the Legislature that the inscription specified in Order 37 Rule 2(1 )(c) was to be inserted as if it was a Mantra. If the contention of the learned counsel for the defendants is correct, then if the plaintiff had used the words “Order 37″ instead of Order xxxvII”, then that would also amount to non-compliance of Order 37 Rule 2. Furthermore, if the plaintiff uses the abbreviation ‘C.P.C.’ instead of “Code of Civil Procedure, 1908′, surely such use would not mean that he has not complied with the provision of Order 37 Rule 2.
(17) Regarding the provisions of Order 37 Rule 2 as mandatory would mean that three things which are prescribed therein have to be indicated but the manner in which it is indicated is left to the plaintiff and if there is substantial compliance with the said rule, then the plaint will have to be regarded as being under Order 37.
(18) Our answer to the aforesaid question which has been referred to this Bench, therefore, is that though the provisions of Order 37 Rule 2(1) are mandatory in nature but if there has been substantial compliance of the same, then the plaint will be regarded as’ being under Order 37. The reference is answered accordingly.
(19) The suit should now be listed for further orders before the Single Judge on 10th May, 1989.