Sarla Devi And Ors. vs Daya Ram And Ors.
1994 Latest Caselaw 756 Del

JUDGMENT

R.C. Lahoti, J.

(1) In a suit purporting to have been filed under Order37 of the Civil Procedure Code the defendants have been served. They have failed to put in appearance within the meaning of Order 37 Rule 2, Sub Rule 3. An application styled as under Section 148 Civil Procedure Code and Section 5 of the Limitation Act read with Section 151 Civil Procedure Code has been filed seeking condensation of delay in putting in appearance. The application has been opposed vehemently by the plaintiffs' Counsel submitting that the Court does not have jurisdiction to extend the time statutorily appointed for putting in appearance by the defendants.

(2) It is not necessary to dispose of the contending contentions raised touching the application filed by the defendant because having heard the learned Counsel for the parties this Court has formed an opinion that the suit itself is not friable under Order 37 Civil Procedure Code and so the question of putting in any appearance and seeking leave to defend by the defendants does not arise.

(3) The defendants Nos.1 and 2 and Late Rej Ram, the deceased father of the defendants Nos. 3 and 4 had entered into an agreement to sell an immovable property in favor of the plaintiffs. The contract has failed in view of the property having been acquired by the State. The plaintiffs have filed this suit for recovering back the amount of consideration paid by them.

(4) Learned Counsel for the defendants has submitted that a suit against legal representatives of a party to a written contract does not lie under Order 37, Reliance is placed on a Single Bench decision of Bombay High Court in Rajesh Steel Centre v. Smt. Rashmi K. Agarwal & Ors., 1986 Mah L.J. 993. It is held therein :- "IT is true that the suit is based on a bill of exchange, but in so far as the defendants in this suit are concerned, they are sued as the heirs and legal representatives of the deceased, and hence would not be personally liable. At best their liability would only be to the extent of the estate of the deceased in their hands and not more. If these legal heirs and representatives who have been made defendants are permitted to defend, the whole or any part of the claim, and a direction is given to give security within a specified time, it may be that they may not be able e to comply with the order because no liquid assets or for that matter any assets of the deceased may have come to their hands during the time prescribed for giving the security, in which case their defense would be shut out and a decree would follow. Such a situation must mean the very negation of the leave granted to defend to those who are not personally liable. The result against such defendants who are not personally liable, would be harsh, inequitable and unjust and such can never be the intention of the Legislature in enacting Order xxxvII of the Code of Civil Procedure.In this view of the matter, I hold that a suit as a summary suit cannot lie against parties who are sued as legal heirs and representatives of the deceased and who are not personally liable. This suit will, therefore, be treated as a regular suit."

(5) Learned Counsel for the plaintiffs has criticised the view taken in the Rajesh Steel Centre's case (supra) by submitting that if this Court were to take such a view it would tantamount to rewriting the language or Order 37 and a prohibition against suits against legal representatives of parties to contract enactment etc. being entertained under Order 37 shall have to be read in the provision which prohibition the language of Order 37 does not contemplate. However, Iam not impressed. The learned Judge has assigned reasons for taking the view which he has done by dealing with nature of jurisdiction exercisable under Order37 Civil Procedure Code and I find no fault therewith.

(6) Learned Counsel for the plaintiff still submitted that in so far as the defendants Nos. 1 and 2 are concerned, this Court could pass a decree against them under Order 37 Civil Procedure Code and leave the matter to be tried as a regular suit against the defendants 3 and 4. Even this submission cannot be accepted. A single suit cannot be dissected into two : against some of the defendants to be treated as a suit under Order 37 Civil Procedure Code and against some of them to be treated asa regular suit. A suit as a -whole would be either one under Order 37 or not. So long as the defendants 3 and 4 are parties to the suit, it cannot be summarily tried under Order 37.

(7) A defendant can without entering appearance under Order 37 Rules 2(3)and without filing an application seeking leave to defend raise a question as to the jurisdiction of the Court to try a suit under Order 37 by pointing out non-applicability of Order 37 to the suit of the nature filed against him.

(8) The suit shall be tried as an ordinary regular suit. The defendants are allre presented and have been served with pleadings. Let them file written statement within four weeks. Ia disposed of. Suit No. 1518/94 List before the D.R. for completing the pleadings on 17.1.95.