Sheshnath Singh vs Devendra Pratap Singh
2023 Latest Caselaw 9696 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 64							         A.F.R.
 
Case :- CIVIL REVISION No. - 126 of 2022
 
Revisionist :- Sheshnath Singh
 
Opposite Party :- Devendra Pratap Singh
 
Counsel for Revisionist :- Shailendra Kumar Singh,Ashok Kumar Upadhyay
 
Counsel for Opposite Party :- Tej Bhan Singh,Meraj Ahmad Khan
 
Hon'ble J.J. Munir,J.

This civil revision is directed against an order of Ms. Diksha Shree, learned Additional Civil Judge (Senior Division)-03, Allahabad dated 21.11.2022 rejecting the defendant-revisonist's application for leave to defend in a summary suit.

2. Heard Mr. Ashok Kumar Upadhyay, learned Counsel appearing for the revisionist and Mr. Tej Bhan Singh, learned Counsel appearing on behalf of the plaintiff-respondent.

3. The summary suit here instituted under Order XXXVII of the Code of Civil Procedure, 1908 (for short, 'the Code') is one to recover money due on several cheques, said to have been issued by the defendant in the plaintiff's favour, that were dishonoured on presentation. The summary suit was instituted on 13.09.2022. On 14.09.2022, summons in Form 4 of Appendix B to the Code were issued to the defendant for appearance. The summons were made returnable on 29.09.2022.

4. A perusal of the order sheet shows that on 29.09.2022, the Presiding Officer was not available because she was away on training. On the next date, i.e. 10.10.2022, the Presiding Officer was on leave. On 17.10.2022, the plaintiff filed a copy of the postal track along with an affidavit, showing that the defendant had been served on 23.09.2022 with the summons. The suit was directed to come up on 29.10.2022 vide order dated 17.10.2022. Vide order dated 29.10.2022, service upon the defendant was held sufficient and the suit was adjourned to 07.11.2022. Later on, on 29.10.2022, the defendant put in appearance through Counsel and moved an application bearing paper no. 11C, saying that the learned Counsel had got information from his client over telephone, instructing him in the present suit. The learned Counsel urged that he needs a copy of the plaint, so that he can file a reply. The suit was then adjourned to 01.11.2022 by the subsequent order that was passed on 29.10.2022. On 01.11.2022, the defendant moved an application marked as paper no. 12C along with an affidavit 13C, to which was attached a vakalatnama from the defendant, authorizing the learned Counsel to appear and defend. The application 12C sought leave to defend the suit. The grounds on which leave was sought were mentioned in the accompanying affidavit paper no. 13C. The affidavit largely disclosed for grounds the fact that the defendant was undergoing treatment at the District Hospital, Mau and advised bed rest. Some papers relating to the treatment were enclosed with the affidavit. The defendant denied the service of summons at his address and said that after coming to know about the institution of this suit, he had informed his learned Counsel, on the basis of which the learned Counsel had moved the application bearing paper no. 11C, the day he appeared.

5. It was further said in the affidavit that the defendant came over to Allahabad from Mau and moved the application bearing paper no. 12C seeking leave to defend. The plaintiff objected to both the applications bearing paper no. 11C and 12C. It was made out that the defendant was served with the summons on 23.09.2022. The plaintiff urged that on 29.10.2022, the defendant had appeared much beyond ten days of the service of summons for appearance, and, therefore, the suit ought to be decreed. It was also said that the application paper no. 11C was filed without a vakalatnama and beyond the statutory period of ten days, rendering it liable to be rejected. The suit was adjourned on 01.11.2022 to 07.11.2022 and it is on that date that the defendant applied for leave to defend. The plaintiff also said that the affidavit does not disclose any ground for leave to defend at all. The defendant has not denied the issue of the cheques in question that are the basis of the suit. The prayer, therefore, was that the application for leave to defend in any case ought to be rejected.

6. The learned Trial Judge, while dealing with the defendant's applications 11C and 12C, held that the defendant had not disclosed grounds for leave to defend in his application 12C, nor anything about the merits of the plaintiff's claim was said there. It was not disclosed as to what was the substantial defence to the plaintiff's claim, on the foot of which leave to defend may be granted. The affidavit filed in support of the application 12C made out a case for the defendant's absence. Therefore, the learned Trial Judge, considering the prayer in the application 11C, seeking permission to appear in the suit in response to the summons for appearance, decided to exercise discretion conferred under sub-rule (7) of Rule 3 of Order XXXVII to condone the delay in the matter of appearance and permitted the defendant to appear. However, the learned Trial Judge, finding that there was no dependable cause indicated in the affidavit 13C filed in support of the application 12C, rejected the same, denying the defendant leave to defend. It is against the order refusing leave to defend that the defendant-revisionist has come up.

7. Rule 3 of Order XXXVII of the Code discloses the precise course that a summary suit takes, after summons for appearance have been instituted under Rule 2 of Order XXXVII of the Code. Rule 3 of Order XXXVII of the Code reads:

"3. Procedure for the appearance of defendant--(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,--

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit."

8. A reading of Rule 3 of Order XXXVII of the Code shows that once the defendant enters appearance in response to the summons issued in Form 4 of Appendix B to the Code, notice of appearance is to be given by the defendant to the plaintiff's Counsel, or if the plaintiff appears in person, to the plaintiff himself, either by notice delivered at or sent by a prepaid letter, directed to the address of the plaintiff's pleader or the plaintiff, as the case may be. Sub-rule (4) of Rule 3 of Order XXXVII of the Code postulates that after the defendant enters appearance, the plaintiff is obliged to serve on the defendant, summons for judgment in Form 4A set out in Appendix B to the Code. The summons for judgement are to be made returnable, not less than ten days from the date of service. The summons for judgment are required to be supported by affidavit, verifying the cause of action and the amount claimed to be due from the defendant. The statute also requires the plaintiff to state that in his belief, there is no defence to the suit. It is upon service of the said summons for judgment that within the time period of ten days, the defendant can apply for leave to defend the suit. Sub-rule(5) of Rule 3 postulates that the leave prayed by the defendant to be granted by the Court is unconditional or upon such terms as the Court may consider just. The two provisos appended to sub-rule (5) are further guidance in the matter to the Court how leave is to be granted and subject to what conditions. Those provisos are not the subject matter of consideration in this revision.

9. The crux of the issue here appears to be that the learned Trial Judge refused the application for leave to defend, made by the defendant at a time when the stage for that kind of an application had not yet arrived. This is so because the plaintiff had not taken out any summons for judgment. A reading of sub-rule (4) and sub-rule (5) of Rule 3 of Order XXXVII of the Code makes it evident that an application for leave to defend can be made by a defendant only when the plaintiff takes out summons for judgement, complying with the conditions of sub-rule (4) of Rule 3 of Order XXXVII of the Code. It brooks little doubt that leave to defend cannot be sought by the defendant at the stage when he enters appearance in response to the summon for appearance. The next step is to be taken by the plaintiff by obtaining summons for judgment. It is, thereafter, that the defendant may, within the time permissible and in the manner prescribed, apply for leave to defend. Therefore, in this case the defendant's application for leave to defend was premature.

10. The learned Trial Judge in refusing leave to defend, acted without jurisdiction. If at all an application for leave to defend had been made at that stage by the defendant, it ought to have been dismissed as premature, rather than on merits, as done in the present case.

11. This issue came up for consideration before the Rajasthan High Court in Sewa Ram v. Firm Modaram Tulsiram, 2001 SCC OnLine Raj 424, where it has been observed:

"11. Thus, on a bare reading of this language it is clear that one part of the procedure envisaged is the one under Rule 2 wherein after receipt of summons for appearance the defendant shall not defend the suit unless he enters appearance and in the event of his not entering appearance the allegations in the plaint are to be deemed to be admitted and the plaintiff is entitled to a decree. In this view of the matter if the defendant enters appearance as per Order 37 Rule 2, then this one stage of the plaintiff to be entitled to decree is lost. Obviously, therefore, thereafter the plaintiff has to proceed further and after the defendant so enters appearance, the plaintiff is to serve on the defendant a summon for judgment which has to be returnable after a particular length of time, it is to be supported by affidavit, verifying the cause of action, and the amount claimed, and also stating that in his belief there is no defence to the suit. It is only and only after the plaintiff does all this, that the defendant attracts any obligation to apply for leave to defend. Otherwise in absence of any such service of summons for judgment, in the scheme of things, the defendant is very much entitled to forget about the suit and just lie low. Not only this in my opinion until and unless the defendant is served with summons for judgment in accordance with Order 37 Rule 3(4), the defendant even does not get any right to even apply for leave to defend, much less can such application at all be considered on merits, by the learned trial court. Until and unless the defendant is served with the necessary papers including affidavit of the plaintiff verifying the cause of action and the amount claimed and also deposing that in his belief there is no defence to the suit, the defendant is not required, rather even not entitled, to apply for leave to defend, as until all this is done, in the set up of things it cannot be said that the defendant is at all even supposed to defend any action."

(emphasis by Court)

12. It must be remarked at this stage that Order XXXVII is a salutary procedure that could curtail much avoidable criminal litigation and bring quick justice, where necessary. However, for some reason in the State of Uttar Pradesh, this procedure has historically been under-utilized, and, if this Court may dare say, hardly ever utilized. It is for this reason that the Presiding Officers of the Subordinate Courts and the members of the Bar are not very well acquainted with the few basic technicalities of procedure, that govern suits under order XXXVII. This case is a classical example of lack of that acquaintance on both sides.

13. In the opinion of this Court, therefore, the impugned order of the learned Trial Judge, to the extent that she has proceeded to reject the application for leave to defend the suit on merits, is not sustainable. In the opinion of this Court, the order of the learned Trial Judge rejecting the application for leave to defend on merits, ought to be substituted by an order rejecting that application as premature.

14. This Court is informed that the plaintiff has already applied for summons for judgment, which have been served upon on 02.12.2022, regarding which he has taken steps for service through registered post on 03.12.2022. Additionally, learned Counsel appearing for the defendant has also been served with the summons for judgement in Form 4A before the Trial Court.

15. Learned Counsel for the defendant appearing before this Court has made a statement at the Bar that the defendant has been served with summons for judgment. Accordingly, the defendant will have ten days time from the date of production of a certified copy of this order before the Trial Court to apply for leave to defend.

16. The application for leave to defend, when made, as directed above, shall be heard and disposed of by the learned Trial Judge, in accordance with provisions of sub-rule (5) of Rule 3 of Order XXXVII of the Code. Needless to say that the application for leave, if made, shall be decided with all promptitude and the suit shall not be adjourned on any pretext. The impugned order dated 21.11.2022 is set aside to the extent it refuses leave to defend and it is ordered in the terms indicated hereinabove.

17. This revision is allowed. Costs easy.

Order Date :- 4.4.2023

Prashant D.