Ramesh S/O Natthuji Shende vs Narayan Kisnuji Wakodikar
2005 Latest Caselaw 1432 Bom

JUDGMENT

R.C. Chavan, J.

1. The appellant, who has been saddled with a decree for payment of Rs. 2,50,000/- with interest @ 18% per annum in Summary Suit bearing No. 98/2000 by learned 3rd Joint Civil Judge Senior Division, Nagpur has raised a very interesting question in this appeal. The respondent/plaintiff had filed suit under Order XXXVII of the Code of Civil Procedure for recovery of Rs. 2,50,000/- on the basis of dishonour of cheque for this amount given by the defendant to the plaintiff. Summons was issued to the appellant/defendant in amended form No. 4 given in schedule appended to the Code of Civil Procedure (C.P.C.). This amended form was duly notified at Page 431 in Part IV-C of the Maharashtra Government Gazette dated 15th September, 1983. As per this form the summons at Exh.6 was issued to the appellant/ defendant, which reads as under:

Whereas plaintiff has instituted a suit against you under Order XXXVII, of Code of Civil Procedure, 1908 for Rs. 2,50,000/- and interest, you are hereby summoned to make an application within 30 days from the service hereof, for leave to defend the suit in default whereof plaintiff will be entitled at any time after the expiration of such 30 days to obtain a decree for any sum not exceeding the sum of Rs. 2,50,000/- and the cost of the suit together with such interest, if any, as the Court may order.

Leave to defend may be obtained on an application to the Court supported by affidavit disclosing facts as may be sufficient to satisfy the Court that you are entitled to defend the suit.

This summons was duly served on the defendant on 9-7-2004. The defendant appeared on 3-8-2004 and filed application Exh.9 stating that the summons was not in prescribed form 4-A. This elaborate application, pointing out the entire procedure to be followed under Order XXXVII of the Civil Procedure Code culminated in the prayer that the summons be quashed and the defendant be discharged. This application came to be rejected by an order dated 14-10-2004. The plaintiff then filed an affidavit to prove his claim, and, since the defendant had not been given leave to defend, by judgment dated 4th April, 2005, the suit was decreed.

2. I have heard Adv. Khan for the appellant and Adv. N. G. Jetha for the respondent/plaintiff.

3. The learned Counsel for the appellant submitted that since the defendant was not at all served with summons for judgment, there was no question of defendant seeking leave to defend, and without considering whether the defendant could be granted leave to defend, the Court could hot have proceeded to hear the matter further and pronounced the judgment.

4. The learned Counsel for the respondent/plaintiff submitted that all these aspects have been duly considered by the learned trial Judge who held that as per summons issued the appellant/defendant was called upon to file an application for leave to defend within 30 days from service of summons, which the defendant had not done, and therefore, according to the learned Counsel for respondent/plaintiff decree passed against the appellant is proper. Apart from reasons given by the learned trial Judge while rejecting the application Exh.9 filed by the appellant/defendant, the learned trial Judge has also considered the implications of form of summons in paragraph No. 9 of his judgment. He has observed that prior to insertion of new form of summons, the defendant was required to be given a summons to appear within ten days of service of summons. After his appearance another summons for judgment was required to be served within next ten days and then the defendant had ten more days time to seek leave to defend. The learned trial Judge observed that instead of these types of summonses in summary suit the High Court has substituted new form No. 4, and instead of giving time to seek leave to defend in three instalments of 10 days each the defendant has been given entire 30 days period at once and has been called upon to file application for leave to defend. The learned Judge concluded that once the summons in substituted form is served there is no need to issue summons for judgment.

5. The learned trial Judge seems to have been oblivious of the fact that Order XXXVII, Rule 3, however, continued to prescribe that the defendant should file appearance within ten days of service of the first summons, that the plaintiff should serve upon the defendant summons for judgment giving him not less than ten clear days from the date of service, and that the defendant may apply for leave to defend within ten days from service of such summons for judgment. Therefore, the amendment in the form would obviously not supersede the rules which were in existence. Forms are meant to give effect to the Rules and not in order to override the Rules. This seems to have been lost sight of by the learned Judge.

6. Substitution of original form No. 4 by the new form, which has given rise to the whole problem, was indeed surprising, since the amendments carried out by the very same Notification have left the relevant provisions regarding service of summons for judgment untouched, though Order XXXVII, Rule 1 has been modified by the same Notification, amending various provisions of Civil Procedure Code. It seems that this faux-pass was noticed by the High Court after about 2-1/2 years and by Notification No. P/0102//77 published in Part-TV-C of the Government Gazette dated 23rd January, 1986, this amended form was deleted. In view of this, it is clear that the form on the basis of which the learned trial Judge had refused to entertain the appellant/defendants contentions was itself not the one prescribed at the relevant time.

7. In view of this, the judgment and decree under challenge cannot be sustained. It is therefore, set aside and the matter is remanded back to the trial Court for following procedure prescribed under Order XXXVII, Rule 3 of the Civil Procedure Code from the stage of issuing summons for judgment.

8. For that purpose the parties shall appear before the trial Court on 9th January, 2005, without any fresh notice being required to be served upon them.

9. R and P be sent back.