Rentworks India Pvt. Ltd vs India Infoline Ltd
2013 Latest Caselaw 112 Bom

                                        * 1 *                                        wp9999.13

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                             
                            CIVIL APPELLATE JURISDICTION




                                                                     
                             WRIT PETITION NO.9999 OF 2013


    Rentworks India Pvt. Ltd.                  .......Petitioner/s




                                                                    
           V/S.
    India Infoline Ltd.                        .......Respondent/s




                                                     
                                               ******
                                     
    Mr. Sameer Pandit and Ms. Ankita Godbole i/b Wadia Ghandy and Co.
    Advocates for the petitioner.
                                    
    Mr. N. N. Thakore a/w Mr. Rahul Chitnis, Mr. Vikram Sathey, Ms. Jyoti Ghag,
    Mr. H. Kumar i/b M/s. Thakore Jariwala and Associates, Advocate for the
    respondent.
              


                                        Coram : Smt. R.P. SondurBaldota, J.

28th October, 2013.

ORAL ORDER :

1. Rule. Rule made returnable forthwith. By consent of parties the petition

is placed on board for final hearing. Heard counsel for the parties.

2. The short question that arises for consideration in this petition is "Whether

a Civil Court, in the absence of a specific provision therefor, can sit in appeal

* 2 * wp9999.13 over its own order and set the same aside."

3. The facts necessary for deciding the above question are as follows : The

petitioner has filed summary suit in the Bombay City Civil Court against the

respondent for recovery of a sum of Rs.83,42,070.20 Ps. The writ of summons

was served upon the respondent on 21st November, 2012 and the respondent

entered its appearance on 4th December, 2012. The summons for judgment

taken out by the petitioner was served upon the respondent on 21st December,

2012. In view of Order 37 Rule (3) (5) Civil Procedure Code (C.P.C. for short)

the respondent thereafter was required to apply for leave to defend the suit

within a period of ten days i.e. on or before 31st December, 2012. But the

learned Advocate for the respondent sought inspection of the documents from

the petitioner's advocate vide his letter dated 24th December, 2012 expressing in

the very letter his inability to take instructions during the period 25th December

to 29th December, 2012. Therefore, the Advocate for the petitioner fixed up

appointment for inspection on 3rd December, 2013. No inspection was taken on

that day but on the next day i.e. 4th January, 2013 a request was received from

the Advocate for the respondent for postponement of appointment for

inspection. Therefore, further date of 7th January, 2013 came to be fixed and the

inspection was given on that day. On 11th January, 2013 when the summons for

* 3 * wp9999.13 Judgment was called out for hearing the Advocate for the respondent requested

for time to file reply to the summons for judgment. The Bombay City Civil

Court refused the request with following order :

"This matter was fixed on 04.01.2013 for filing reply to N/M & it appears that S/J is also served upon other side. It was necessary on part of deft. to file reply on 04.01.2013.

Under these circumstances time sought by Adv. for deft. cannot be granted. Hence matter is adjourned for hearing on N/M & S/J without reply on behalf of deft. Matter is adjd. 30.01.2013."

4.

The respondent then on 28th January, 2013 took out a Notice of Motion

for setting aside the order dated 11th January, 2013 with further request for

taking its affidavit-in-reply on record. As the prayers in the notice of motion

were defective, on 16th February, 2013 a chamber summons was taken out for

amendment of the prayers to include therein prayer for condonation of delay in

taking out the Notice of Motion. The chamber summons came to be allowed by

the order dated 9th April, 2013 and the Notice of Motion amended accordingly.

It was thereafter heard and disposed of by the order dated 17th August, 2013

which is impugned in the present petition. The impugned order allows the

Notice of Motion and grants permission to the respondent to file reply to the

Summons for Judgment with imposition of costs quantified to Rs.25,000/-.

5. Mr. Pandit, learned counsel for the petitioner submits that the impugned

* 4 * wp9999.13 order is ex-facie illegal, erroneous and contrary to the provisions of law.

According to him the learned Judge has travelled beyond his jurisdiction in as

much as he had no jurisdiction to quash the order passed by the very court on

11th January, 2013. It amounts to sitting in appeal over one's own order. The

second challenge to the impugned order by the petitioner is that there is no scope

in law for passing such an order. Mr. Pandit argues that once leave to defend is

refused to the defendant in a summary suit, the plaintiff becomes entitled to

judgment in terms of the Summons for Judgment in view of order 37 Rule (4),

(6) C.P.C. forthwith. According to him even if for some reason the court is

unable to make the Summons for Judgment absolute forthwith that does not give

any concession or opportunity to the defendant to apply for leave for the second

time. He points out that the petitioner had contested the Notice of Motion of the

respondent on the ground of its maintainability as also on merits. This can be

seen from paragraph 3 of the impugned order wherein the Bombay City Civil

Court records that the Notice of Motion is resisted on three grounds. Firstly,

that the court cannot sit in appeal over its own order, secondly, that incomplete

inspection cannot be a ground for inaction on the part of the defendant and

thirdly, the defendant failed to show any strong chances of succeeding in the

matter which is condition precedent to seek condonation of delay. The Bombay

City Civil Court dismissed the objections of the petitioner with following

* 5 * wp9999.13 observations :

"According to me, the submission by Advocate for plaintiff

is not consistent with letters and spirit of Rule-4 of Order 37. The scheme laid down in Order-37 of CPC shows that Court may

condone delay, if any, in appearance of defendant or applying for leave to defend. The case of defendant before the Court is not so worse. The order to proceed the Summons for Judgment without reply was passed in default of defendant, therefore in the interest

of justice, Court can allow the defendant to file reply to Summons for Judgemnt, on certain conditions. The set of facts at hand, if viewed carefully show that not only defendant, but also plaintiff was at fault, which resulted into inaction on the part of

defendant to file reply to Summons for Judgment. In this light, I incline to allow the Motion, of course subject to heavy cost

payable to plaintiff, resultantly following order is passed."

6. Mr. Thakore, the learned counsel for the respondent per contra seeks to

support the impugned order with a submission that the Notice of Motion taken

out by the respondent was under Rule 119 of the Bombay City Civil and

Sessions Court Rule 1948. Therefore, it cannot amount to the court sitting in

appeal over its own order. In any case according to him the order dated 11th

January, 2013 was passed without application of mind and hence it deserved to

be set aside. Rule 119 of the Bombay City Civil and Sessions Court Rules relied

upon by Mr. Thakore reads as follows :

"119. Appearance of defendant. Summons for Judgment - In a suit filed under Order 37 of the Code of Civil Procedure if the defendant enters an appearance, or files a Vakalatnama, the plaintiff shall, on affidavit made by himself or by any other person who can swear to the facts of his own personal knowledge verifying the cause of action, and the

* 6 * wp9999.13 amount claimed, and stating that in his belief there is no defence to the action, apply by Summons for Judgment returnable not less than ten clear days from the date of service to the Sitting

Judge in Chambers for the amount claimed, together with interest (if any) and costs. The Judge may thereupon, unless

the defendant by affidavit or declaration shall satisfy him that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, pass a decree for the plaintiff accordingly."

7. The main objection of the petitioner to the impugned order is that the same

has been passed without jurisdiction by the Bombay City Civil Court. It is,

therefore, necessary to see whether the Bombay City Civil Court had jurisdiction

to set aside its own order on the application filed by the respondent. If the order

is found to be without jurisdiction there will be no need to consider the merits of

the Notice of Motion filed by the respondent.

8. The Civil Procedure Code has made special provision for summary suit

under Order 37 which provides procedure for every stage of such suit including

for setting aside of decree. Rule 1 thereof prescribes the Courts and the classes

of suits to which the Order is to apply. Rule 2 is the procedure for institution of

summary suits and rule 3 which is relevant for present purposes prescribes for

appearance of the defendant. Sub-rule (1) of rule (3) requires the defendant to

enter appearance within a period of ten days from the date of receipt of

* 7 * wp9999.13 summons. Sub-rule (3) requires that on the day of entering appearance, notice

of such appearance shall be given by the defendant to the plaintiff's pleader. Sub-

rule (4) requires the plaintiff to serve a summons for judgment in prescribed

form upon the defendant within ten days from the date of notice of appearance.

Within next ten days the defendant may by filing affidavit or otherwise disclose

such facts that may entitle him to defend the suit. Leave to defend if granted

may be unconditional or upon such terms as may appear to the court to be just.

Sub-rule (6) provides for failure on the part of the defendant in applying for

leave to defend or having applied the leave is refused. Under such

circumstances the plaintiff is made entitled to judgment forthwith. Rule 4 of

order 37 empowers to appear in the court to set aside decree in case of special

circumstances and grant leave to the defendant to defend the suit. Rules 5 and 6

are for the stages post decree. Thus, in order 37 itself there is no provision for

the trial Court setting aside its own order refusing to grant leave to defend

summary suit.

9. The scheme of procedure under the Civil Procedure Code even for regular

suits does not ordinarily allow a court to sit in appeal over its own orders or to

reconsider the same. There are exceptions made by way of specific provisions,

some examples of which would by Order 9 Rule 13 and Order 21 Rule 106

* 8 * wp9999.13 which are for setting aside ex-parte orders, Order 39 Rule 4, which empowers

the court to discharge, vary or set aside order of temporary injunction passed by

it and power of review of it's order by the court under Order 47. Except

wherever it has been so specifically provided no civil court can reconsider its

own order because it would amount to sitting in appeal over it's own order.

Section 96 of Civil Procedure Code provides for an appeal to be heard by a court

authorised for the purpose by Civil Procedure Code. It is well established

position in law that right of suit is distinct from right of appeal. The right to file

a suit is an inherent right in every person. It requires no authority of law. But

right of appeal inhers in no one. It has to be specifically provided for in a

statute and therefore is a creature of statute. Therefore, the Bombay City Civil

Court had no authority/jurisdiction to set aside it's own order dated 11th January,

2013 without there being any specific provision in Civil Procedure Code.

10. As has been rightly pointed out by Mr. Pandit, relying upon decision of the

Apex Court in Ajay Bansal Vs. Anup Mehta and Others and others (2007) 2

SCC 275, on rejection by the court of defendant's application for grant of leave

to defend, passing of the decree is almost automatic. Such decree can be passed

either under Rule 3 (6) of Order 37 or on the basis of affidavit evidence of the

plaintiff and the documents produced or even on oral evidence formally proving

* 9 * wp9999.13 the case but the consequence of the decree cannot be avoided. This is because

the defendant in summary suit does not have inherent right to defend. In order to

emphasise the nature of right of defence of the defendant in summary suit Mr.

Pandit relied upon a decision of the Division Bench of this court in Bankay

Bihari G. Agrawal and Others Vs. M/s. Bhagwanji Meghji and Others reported

in (2001) 1 Mah. L.J. 345.

11. Mr. Pandit submits that the only provision in C.P.C. which permits

reconsideration on merit of its own order by the Civil Court i.e. power to review

its own decision under Order 47 is not same as the power of the Appellate Court.

There is distinct difference between the two powers. The power of review is

limited to the circumstances specified in Order 47 Rule 1. The Apex Court in its

decision in State of West Bengal Vs. Kamal Sengupta and Anr. (2008) 8

Supreme Court Cases 612 relying upon its another decision in Parsion Devi Vs.

Sumitri Devi (1997) 8 SCC 715 observes that "In exercise of the jurisdiction

under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be

`reheard and corrected'. There is a clear distinction between an erroneous

decision and an error apparent on the face of the record. While the first can be

corrected by the higher forum, the latter only can be corrected by exercise of the

review jurisdiction. A review petition has a limited purpose and cannot be

* 10 * wp9999.13 allowed to be `an appeal in disguise'. With such kind of restrictions even in the

cases where reconsideration of its own order is permitted under CPC, there can

be no question of Civil Court sitting in an appeal over its own order without

there being any specific provision therefor.

12. Rule 119 of CPC of Bombay City Civil and Sessions Court Rules relied

upon by Mr. Thakore cannot come to the rescue of the respondent. It cannot be

allowed to over ride the specific provision of CPC under Order 37 (3) (4) of

CPC. In the circumstances the Notice of Motion taken out by the respondent for

recall of the order by the Bombay City Civil Court was not maintainable. The

only remedy available to the respondent to challenge the order refusing to grant

time to file reply to the Summons for Judgment was to approach the higher

Court. The order impugned in the petition, therefore, cannot be sustained. The

petition is allowed. Rule is made absolute. The impugned order dated 17th

August, 2013 passed by the Bombay City Civil Court on Notice of Motion

No.338 of 2013 is set aside. The Notice of Motion is dismissed. The parties

shall bear their own costs.

[Smt. R.P. SondurBaldota, J]

H.C. Shiv. P.S.