Page No.# 1/9 vs Hemen Prasad Dutta
2025 Latest Caselaw 832 Gua

Gauhati High Court

Page No.# 1/9 vs Hemen Prasad Dutta on 4 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                                Page No.# 1/9

GAHC010078802024




                                                                          2025:GAU-AS:7334

                            THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : CRP(IO)/129/2024

         SUNANDA RAM CHOUDHURY
         SON OF LATE NIDHI RAN CHOUDHURY,
         RESIDENT OF HOUSE NO. 18, MANIMUGDHA NAGAR,
         SASAL, SRI SRI MAHAPURUSH MADHAV DEV PATH,
         GUWAHATI- 781022, MOUZA- BELTOLA, P.S.- DISPUR,
         IN THE DISTRICT OF KAMRUP(METRO), ASSAM.



         VERSUS

         HEMEN PRASAD DUTTA
         SON OF LATE LAKHI PRASAD DUTTA,
         RESIDENT OF OPPOSITE PUSPHAS ARYAHI AND AJOY RESIDENCY,
         BISHNUJYOTI PATH, BYE LANE NO. 1,
         JAYANAGAR, GUWAHATI- 781022,
         IN THE DISTRICT OF KAMRUP(METRO), ASSAM.



                   For the Petitioner(s)   : Ms. A. Saikia, Advocate
                   For the Respondent(s)   : Mr. S. B. Prasad, Advocate


                   Date of Hearing         : 04.06.2025

                   Date of Judgment        : 04.06.2025
                                                                      Page No.# 2/9

                                  BEFORE
                   HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Ms. A. Saikia, the learned counsel appearing on behalf of the petitioner and Mr. S. B. Prasad, the learned counsel appearing on behalf of the respondents.

2. The supervisory jurisdiction of this Court have been invoked to challenge the order dated 30.11.2023 passed in Summary Suit No.10/2023 as well as the subsequent order of rejection of the review petition dated 06.03.2024.

3. The learned counsel appearing on behalf of the petitioner submitted that taking into account that the suit was filed within the ambit of Order XXXVII of the Code of Civil Procedure, 1908 (for short 'the Code') without seeking a leave to defend, the question of permitting the defendant to file a written statement is beyond the provisions of Order XXXVII of the Code. In that regard, the learned counsel referred to the judgment of the Supreme Court in the case of Southern Sales and Services and Others Vs. Sauermilch Design and Handels GMBH reported in (2008) 14 SCC 457.

4. Per contra, the learned counsel appearing on behalf of the respondent submitted that the respondent/defendant did not receive the copy of the summons and as such, sought for vacation of the order dated 04.11.2023 by filing an application under Order IX Rule 7 of the Code which was registered as Misc. (J) Case No.496/2023. The learned counsel submitted that this application was allowed vide an order dated 30.11.2023 and thereupon vide an order passed in the suit, the next date was fixed on 15.12.2023 and on Page No.# 3/9

the basis thereof, the written statement has been filed. The learned counsel for the respondent further submitted that taking into account that the Court had permitted filing of the written statement, it would amount to granting of a leave by the Court and as such, the written statement ought to be accepted.

5. This Court upon hearing the learned counsels for the parties, finds it relevant to take note of the provisions of Order XXXVII of the Code. A perusal of Order XXXVII Rule 1(2) of the Code stipulates which suits come within the ambit of the said order. It include suits in which the plaintiff seeks only to recover a debt or a liquidated demand on money payable by the defendant with or without interest arising out of a written contract.

6. This Court further finds it relevant to take note of the suit which was filed by the petitioner was based upon an agreement dated 25.01.2018 and the petitioner as plaintiff claiming an amount of Rs.1,37,000/- along with interest @12% per annum.

7. This Court further finds it relevant to take note of Rule 2 of Order XXXVII of the Code which stipulates the manner in which a summary suit is required to be instituted. It stipulates that the summons in respect to a summary suit has to be issued in Form No.4 in Appendix-B or in such other Form as may, from time to time be prescribed. Sub-Rule (3) of Rule 2 of Order XXXVII of the Code further stipulates that the defendant shall not defend the suit referred to in Sub-Rule (1) unless he enters appearance and in default of his entering an appearance, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with Page No.# 4/9

interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by the Rules made in that behalf and such decree may be executed forthwith.

8. Rule 3 of Order XXXVII of the Code further stipulates that the defendant upon being served a copy of the plaint and the annexures thereto, at any time within 10 days of such service, enter an appearance either in person or by pleader and in either case he shall file in the Court an address for service of notice on him. Sub-Rule (3) of Order XXXVII Rule 3 of the Code stipulates that on the date of the defendant's 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 the 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.

9. It is relevant to take note of Sub-Rule (4) and (5) of Rule 3 of Order XXXVII of the Code for the purpose of the present proceedings and as such the same are reproduced herein under:

"(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 Page No.# 5/9

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."

10. From the above quoted Sub-Rules, it would transpire that 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. Sub-Rule (5) of Rule 3 of Order XXXVII of the Code further gives a right upon the defendant 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.

11. This Court further finds it very pertinent to take note of Form 4A of Appendix B which being relevant is reproduced herein under:

Page No.# 6/9

"[No. 4A SUMMONS FOR JUDGMENT IN A SUMMARY SUIT (O. XXXVII, r. 3) (Title) In the ..........Court, at .......... Suit No..........of 19..../20....

XYZ ..........................................................................Plaintiff

Versus

ABC .........................................................................Defendant

Upon reading the affidavit of the plaintiff the Court makes the following order, namely:-

Let all parties concerned attend the Court or Judge, as the case may be, on the ......... day of ....... 19..../20....., at ........ O'clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs. ..... and for interest and costs.

Dated the .......... day of ......... 19 ....../20......]"

12. In the backdrop of the above, let this Court now take into consideration as to how the Summary Suit No.10/2023 proceeded. It is seen that the said suit was filed on 10.07.2023. On 04.11.2023, the learned Court of the Civil Judge, (Junior Division) No.1, Kamrup (M) at Guwahati had passed an order indicating that the summons issued upon the defendant returned after being served and as the defendant was absent without steps, the suit shall proceed ex-parte against the defendant and accordingly, fixed 10.11.2023 for evidence. On 10.11.2023, the defendant appeared and filed an application under Order IX Rule 7 of the Code for vacating the ex-parte Page No.# 7/9

order dated 04.11.2023 on the ground that summons were not served. The record further reveals that the said application filed under Order IX Rule 7 of the Code was registered as Misc. (J) Case No.496/2023. The learned Trial Court vide an order dated 30.11.2023 found that the cause so shown in the application filed under Order IX Rule 7 of the Code was a good cause and accordingly vacated the ex-parte order. The effect of allowing the application under Order IX Rule 7 of the Code in the opinion of this Court relegates the suit back to the date on which the defendant did not appear thereby the suit gets relegated to the date of 04.11.2023.

13. It is however seen that vide another order dated 30.11.2023 in the suit, the learned Trial Court fixed 15.12.2023 for filing written statement. In the opinion this Court, the learned Trial Court could not have done so taking into account that without seeking a leave to defend in a suit filed under Order XXXVII of the Code, the question of allowing the filing of the written statement by the defendant is foreign without the leave being sought for as would be apparent from a perusal of Sub-Rule (4) and (5) of Order XXXVII Rule 3 of the Code itself referred to herein above.

14. Be that as it may, the written statement thereupon was filed on 15.12.2023. The petitioner herein filed a review application seeking review of the order dated 30.11.2023 and vide an order dated 06.03.2024, the learned Trial Court dismissed the said review application and it is under such circumstances, the present proceedings have been filed.

15. This Court while hearing the matter enquired with Ms. A. Saikia, the learned counsel for the petitioner as to whether upon the order being passed on 30.11.2023 in Misc. (J) Case No.496/2023 thereby relegating the suit Page No.# 8/9

back to the stage of 04.11.2023, whether any summons for judgment in Form 4A in Appendix B as quoted hereinabove was served upon the defendant taking into account that the right of the defendant to seek the leave to defend only accrues when such a summons for judgment in Form 4A of Appendix B is served upon the defendant. The learned counsel for the petitioner submitted that no such form has been served taking into account that the Court did not take any steps for signing the summons for judgment in Form 4A.

16. From the above discussions, it would therefore be seen that the learned Trial Court has proceeded with the summary suit in a manner which is similar to a normal suit and as such, it is the opinion of this Court that the supervisory jurisdiction of this Court is required to be exercised taking into account that the learned Trial Court erred in exercising its jurisdiction. Further to that, it also shocks this Court that the learned Trial Court did not adhere to the provisions of Order XXXVII of the Code in the manner stipulated in the Rules and proceeded the suit in such a casual manner.

17. Considering the above, this Court therefore disposes of the instant petition with the following observations and directions:

(i) The order dated 30.11.2023 as well as by which the learned Trial Court fixed 15.12.2023 for written statement is interfered with.

(ii) The order dated 15.12.2023 by which the written statement filed by the defendant was accepted is interfered with.

(iii) It was submitted by the learned counsel for the petitioner/plaintiff that he has already filed the summons for judgment in Form 4A and the same is Page No.# 9/9

in the record. Accordingly, this Court directs the learned Trial Court to issue the same and serve a copy upon the defendant in the suit. It shall be open to the defendant thereupon to file appropriate application seeking leave in terms with Sub-Rule (5) of Order XXXVII Rule 3 of the Code. Basing upon the decision so taken by the learned Trial Court to grant the leave or not to grant the leave, the learned Trial Court shall further proceed with the adjudication of Summary Suit No. 10/2023.

(iv) It is seen that vide an order dated 20.04.2024, the further proceedings of Summary Suit No.10/2023 pending before the Court of the learned Civil Judge (Junior Division) No.1, Kamrup (M) at Guwahati was stayed. The said stay order stands vacated and as both the parties are duly represented, they are directed to appear before the Court of the learned Civil Judge (Junior Division) No.1, Kamrup (M) at Guwahati on 23.06.2025 for further proceedings of the suit.

JUDGE

Comparing Assistant