Delhi High Court
M/S M M Healthcre Ltd vs P K Chauhan on 12 July, 2016
$~A-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12.07.2016
+ CM(M) 802/2015
M/S M M HEALTHCRE LTD ..... Petitioner
Through Mr.Alok Kumar and Mr.Neeraj
Kumar Gupta, Advs.
versus
P K CHAUHAN ..... Respondent
Through Mr.Kunal Kalra and
Mr.P.K.Chauhan, Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present petition the petitioner seeks to impugn the order dated
17.7.2015 by which order the application of the respondent under section 10
CPC was allowed and the suit filed by the petitioner was stayed.
2. The plaintiff/petitioner had filed the present suit under Order 37 CPC
as a summary suit for recovery of Rs.64,960/-. The respondent No.1 entered
appearance and filed an application for leave to defend. He also filed an
application under Section 10 CPC for stay of the suit.
3. By the impugned order the trial court has not adjudicated upon the
application for leave to defend filed by the respondent but has disposed of
the application filed by the respondent under Section 10 CPC allowing the
said application.
4. Learned counsel appearing for the petitioner submits that as per
judgment of the Supreme Court in the case of Indian Bank vs. Maharashtra
State Co-operative Marketing Federation Limited, AIR 1988 SC 1952 the
trial court was obliged to first hear and adjudicate upon the application for
grant of leave to defend. In case the trial court came to the conclusion that
the application for leave to defend has to be dismissed, then the trial court
could proceed and pass an appropriate decree in favour of the petitioner. It
is urged that this adjudication had to be done prior to adjudication of the
application under Section 10 CPC filed by the respondent.
5. A perusal of the judgment of the Supreme Court in the said case of
Indian Bank vs. Maharashtra State Co-operative Marketing Federation
Limited, (supra) would show the following issue was raised before the
Supreme Court paragraph 2 of which reads as under:-
"2. The question which arises for consideration in these
appeals is whether the bar to proceed with the trial of
subsequently instituted suit, contained in Section 10 of the
Code of Civil Procedure, 1908 (hereinafter referred to as the
„Code‟) is applicable to summary suit filed under Order 37
of the Code."
The Supreme Court further held as follows:
"9. The provision contained in Section 10 is a general
provision applicable to all categories of cases. The
provisions contained in Order 37 apply to certain classes of
suits. One provides a bar against proceeding with the trial of
a suit, the other provides for granting of quick relief. Both
these provisions have to be interpreted harmoniously so that
the objects of both are not frustrated. This being the correct
approach and as the question that has arisen for
consideration in this appeal is whether the bar to proceed
with the trial of subsequently instituted suit contained in
Section 10 of the Code is applicable to a summary suit filed
under Order 37 of the Code, the words 'trial of any suit' will
have to be construed in the context of the provisions of
Order 37 of the Code. Rule 2 of Order 37 enables the
plaintiff to institute a summary suit in certain cases. On such
a suit being filed the defendant is required to be served with
a copy of the plaint and summons in the prescribed form.
Within 10 days of service the defendant has to enter an
appearance. Within the prescribed time the defendant has to
apply for leave to defend the 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. If the defendant has
not applied for leave to defend, or if such an application has
been made and refused, the plaintiff becomes entitled to
judgment forthwith. If the conditions on which leave was
granted are not complied with by the defendant then also the
plaintiff becomes entitled to judgment forthwith. Sub-rule
(7) of Order 37 provides that save as provided by that order
the procedure in summary suits shall be the same as the
procedure in suits instituted in the ordinary manner. Thus in
classes of suits where adopting summary procedure for
deciding them is permissible the defendant has to file an
appearance within 10 days of the service of summons and
apply for leave to defend the suit. If the defendant does not
enter his appearance as required or fails to obtain leave the
allegations in the plaint are deemed to be admitted and
straightaway a decree can be passed in favour of the
plaintiff. The stage of determination of the matter in issue
will arise in a summary suit only after the defendant obtains
leave. The trial would really begin only after leave is granted
to the defendant. This clearly appears to be the scheme of
summary procedure as provided by Order 37 of the Code.
10. Considering the objects of both the provisions, i.e.,
Section 10 and Order 37 wider interpretation of the word
'trial' is not called for. We are of the opinion that the word
'trial' in Section 10, in the context of a summary suit, cannot
be interpreted to mean the entire proceedings starting with
institution of the suit by lodging a plaint. In a summary suit
the 'trial' really begins after the Court or the Judge grants
leave to the defendant to contest the suit. Therefore, the
Court or the Judge dealing with the summary suit can
proceed up to the stage of hearing the summons for
judgment and passing the judgment in favour of the plaintiff
if (a) the defendant has not applied for leave to defend or if
such application has been made and refused or if (b) the
defendant who is permitted to defend fails to comply with
the conditions on which leave to defend is granted."
6. In view of the above, it is clear that the trial court had to first decide
the application for leave to defend. A decree could be passed on the grounds
stated in the above judgment i.e. if no application for leave to defend is filed
or if filed and dismissed or if conditional leave is granted and the defendant
fails to meet the conditions stipulated. In case the application is allowed or
conditionally allowed and the defendant fulfils the conditions in that
eventuality the trial court could proceed with adjudication of the application
under Section 10 CPC.
7. In the light of the above, the impugned order dated 17.7.2015 is set
aside. The matter is remanded back to the trial court for adjudication of the
application for leave to defend and for further adjudication as stated in the
above paragraphs.
8. Parties to appear before the concerned Court on 3 rd August, 2016.
Petition stands disposed of.
JAYANT NATH, J
JULY 12, 2016
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