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CRA/256/2001 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 256 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
R
D AGENCIES & 2 - Applicant(s)
Versus
HAPPY
BOTTLING COMPANY - Opponent(s)
=========================================================
Appearance
:
MR
NILESH A PANDYA for
Applicant(s) : 1 - 3.
MR VISHAL MEHTA FOR MR AJ SHASTRI for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 30/04/2010
ORAL
JUDGMENT
Special
Summary Suit No.942 of 1996 has been filed under Order XXXVII of
Code of Civil Procedure by the present applicants-original
plaintiffs against the respondent-original defendant in the Court of
learned Civil Judge(S.D.), Vadodara, seeking a decree of
Rs.1,24,621.96. When the summons are served, the defendant appeared
and submitted application Ex.10 to entitle him to defend the suit as
per the provisions of Order 37. Learned counsel raised the question
as to who will begin with the arguments in the suit and hence, the
Court passed a reasoned order below Ex.1 in the above referred suit
and came to the conclusion that the plaintiff has to argue out Ex.7
i.e. summons for judgment first. Said order is challenged in this
revision.
Heard
learned counsel, Mr.N.A.Pandya for the applicants and learned
counsel, Mr.Vishal Mehta, for the opponents.
Learned
counsel, Mr.Pandya, taking this Court through the relevant
provisions of Order 37, has submitted that first of all Court has to
decide whether unconditional or conditional leave to defend the suit
is required to be granted to the defendant or not and only then,
Court can proceed with the suit. It is further submitted that
against the provisions of Order 37 Rule-3(6), learned Civil Court
has passed the order and hence in revision, this Court has
jurisdiction to interfere with the findings of the court below and
rectify the mistake.
On
the other hand, it is submitted by learned counsel, Mr.Mehta, that
to prove the case, the learned advocate of the plaintiffs has to
argue out by proceeding with the suit first. It is further submitted
that after perusing the provisions of Order 37 Rule 3(6) of CPC and
Secs.101 and 102 of Indian Evidence Act, the learned Civil Judge has
rightly came to the conclusion that learned advocate of the
plaintiffs has to argue out Ex.7 i.e. summons for judgment first.
This
Court has gone through the impugned order as also the relevant
provisions of Order 37. It is crystal clear from the provisions of
Order 37 that if the defendant enters an appearance, the summons for
judgment shall be served. The defendant, upon the service of summons
for judgment, is required in law to file an application for grant of
leave to defend the suit within ten days of service of summons
disclosing the facts entitling to defend the suit supported by an
affidavit. Such a prayer when made has to be disposed of by the
Court in accordance with the provisions of law. The Court may or may
not grant the leave to defend. The Court may also grant the leave to
defend conditionally or unconditionally. However, such an
application has to be decided
first. Reliance is placed on the case of Mrs.Parvinder Kaur V.
Ram Lal, AIR 1991 J & K 5
wherein it has eben observed as under:
Order
3 of CPC deals with summary procedure for suits covered by it with
the object to abridge the proceedings providing rapidity of
disposal. The provisions of the Order are merely procedural and
cannot be construed as negativating or superseding the substantive
rights of the debtor available to them under the ordinary law. When
the defendant enters an appearance and is served a summons for
judgment in the form prescribed, he has a right to pray by affidavit
or otherwise permission leave to defend the suit after disclosing
such facts as are deemed sufficient to entitle him. Such a prayer
when made has to be disposed of by the Court in accordance with the
provisions of law.
The
revision is accordingly allowed. Impugned order dated 12-9-2000
passed below Ex.1 in Special Summary Suit No.942 of 1996 is hereby
quashed and set aside. Learned Civil Judge is directed to decide
the application for leave to defend the suit submitted by the
defendant first and then to proceed with the suit. Rule is made
absolute.
(M.D.SHAH,J.)
radhan
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