[Cites 4, Cited by 0]
Gujarat High Court
Hiteshbhai Bhikhabhai (Patel) Gajera vs Ketanbhai Bhikhubhai Patel (Diyora) on 7 May, 2026
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4221 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
================================================================
HITESHBHAI BHIKHABHAI (PATEL) GAJERA & ORS.
Versus
KETANBHAI BHIKHUBHAI PATEL (DIYORA)
================================================================
Appearance:
MR JITENDRA MALKAN for MS KHUSHBOO AAKASH SHETH(5932) for the
Appellant(s) No. 1,2,3
MR PRITVIRAJ JADEJA for MR BP GUPTA(337) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 07/05/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE L. S. PIRZADA)
1. The present appeal has been preferred by the
appellant - original defendant under Section 96 of the
Code of Civil Procedure, 1908 against the judgment and
decree dated 11.09.2008 passed by the learned 10 th
Additional Civil Judge, Senior Division, Surat, below
Exh.52 in Summary Civil Suit No. 15 of 2008. By the said
judgment, the learned trial court partly allowed the suit
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filed by the original plaintiff under Order XXXVII Rule
2(3) of the Code of Civil Procedure, 1908 (for short
"CPC") and directed the defendant to pay a sum of Rs.
53,00,000/- to the plaintiff. The plaintiff was held entitled
to recover the said amount along with interest at the rate
of 18% per annum from the date of the suit till
realization, and costs of Rs. 2,000/-, from the defendants
jointly and severally, including from their properties.
2. For the sake of brevity and convenience, the parties
herein are referred to in accordance with their original
status as in the suit.
3.1 The brief facts leading to the present appeal are that
the original plaintiff filed Summary Civil Suit No. 15 of
2008 under Order XXXVII Rule 2 of the Code of Civil
Procedure, 1908 for recovery of Rs.53,00,000/- along with
interest, and also sought a permanent injunction against
the original defendants.
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3.2 The case of the plaintiff before the learned trial
Court is that Defendant Nos. 1 and 2 were well known to
the plaintiff and shared a friendly relationship with him.
Defendant Nos. 1 and 2 are real brothers, and Defendant
No. 3 is their father. Owing to financial crunch, the
defendants approached the plaintiff for financial
assistance and from time to time beginning on
17.10.2007, borrowed a total sum of Rs.53,00,000/-.
3.3 In acknowledgment of the said debt, Defendant Nos.
1 and 2 executed a promissory note in favour of the
plaintiff. As security for repayment, they also deposited
the original title documents of their immovable property
situated at Katargam, Sub-District Choriyasi, District
Surat, bearing Revenue Survey Nos. 458/1 and 549/1/A,
Plot No. 50 of Sant Jalaram Society, along with the
construction thereon, City Survey Ward No. 1, Sheet No.
152, Property No. 20. The said property is exclusively
owned by Defendant Nos.1 and 2.
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3.4 Out of the total amount, a sum of Rs.28,85,000/- was
paid by the plaintiff through cheques from his own bank
accounts as well as from the bank account of his father,
and the remaining amount was paid in cash.
3.5 Further, as per the case of the plaintiff, he
demanded repayment of the said amount from Defendant
Nos. 1 and 2; however, they failed to respond or make
any payment. Subsequently, the plaintiff came to know
that the defendants had also borrowed money from other
persons and were attempting to sell their aforesaid
property. Therefore, the plaintiff issued a public notice
through his advocate in the "Gujarat Mitra" daily
newspaper on 19.02.2008, stating that he had advanced a
substantial amount to the defendants and cautioning the
public against entering into any transaction with respect
to the aforesaid property of Defendant Nos. 1 and 2.
3.6 Thereafter, the plaintiff issued a legal notice through
his advocate on 20.02.2008 via Registered A. D. The said
notice was duly served upon the defendants. In response,
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the defendants issued six cheques of different amounts
and dates aggregating to Rs.53,00,000/-. The said
cheques were signed by Defendant No. 1 in his capacity
as proprietor of Khodiar Textiles.
3.7 The plaintiff deposited the said cheques in his bank
account. Out of the six cheques, three cheques were
presented on 26.02.2008, which were returned unpaid
with the endorsement "Refer to drawer - do not present
again." The remaining three cheques were subsequently
presented and were also dishonoured on 07.03.2008 with
the endorsement "Today's opening balance is
insufficient."
3.8 Thus, an amount of Rs.53,00,000/- remained due and
payable to the plaintiff. Thereafter, the plaintiff issued
legal notices dated 04.03.2008 and 14.03.2008 to the
defendants through Registered A.D., as all six cheques
were returned unpaid as stated above. However, the
defendants neither replied to the aforesaid legal notices
nor paid the amount of Rs.53,00,000/-. Hence, the
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plaintiff filed a summary suit under Order XXXVII of the
Code of Civil Procedure before the learned trial Court
seeking the following reliefs:
"15. Therefore, it is prayed that.....
1) The Defendants here in this suit
have availed a substantial loan amount by
placing their ownership property as
mortgage with us - the Plaintiff, which is
situated at District: Surat, Registration
Sub-District: Choryasi, Mouje: Katargam,
upon the land registered as Revenue Survey
in Sant Jalaram Society, along with the
superstructure constructed thereon,
bearing City Survey Ward Sheet No. 152,
Present (Chalta) No. 20.
If the Defendants dispose of the
said property in any other manner, the
Plaintiff shall suffer grave and irreparable
loss which cannot be compensated in terms
of money. Therefore, it is prayed to pass a
Permanent Injunction Order in favour of
the Plaintiff and against the Defendants,
restraining the Defendants from
transferring the said property in part or in
whole, or causing to be transferred, either
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by themselves or through any other person,
in any manner whatsoever, by way of
mortgage, gift, lien, agreement to sell, or
sale; and,-
2) It is humbly prayed to pass a
Decree in favour of the Plaintiff and
against the Defendants, for the recovery of
the borrowed amount of Rs. 53,00,000/-
(Rupees Fifty-Three Lakhs Only) received
by the Defendants from the Plaintiff, along
with the accrued and accumulating interest
thereon at the rate of 18% per annum as
per commercial trade practice, till the final
disposal of this suit, as well as the notice
charges and the costs of the suit, to be
recovered from the Defendants or from any
of the properties of the Defendants; and,-
3) The Original Sale Deed of the
property situated at District: Surat,
Registration Sub-District: Choryasi, Mouje:
Katargam, upon the land registered as
Revenue Survey Nos. 458/1 and 459/1/A,
bearing Plot No. 50 in Sant Jalaram Society,
along with the superstructure constructed
thereon, bearing City Survey Ward Sheet
No. 152, Present No. 20, is registered at
Serial No. 3818 on 07/04/2007 in Book No.
1 in the office of the Ld. Sub-Registrar,
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Surat. As the said Original Sale Deed is in
the lawful custody of us - the Plaintiff, it is
humbly prayed to pass an appropriate order
restraining the Defendants from illegally
obtaining, forcefully snatching, or
dispossessing the Plaintiff of the said
Original Sale Deed without due process of
law, by resorting to any illegal measures,
using undue force, or extending threats or
intimidation; and,-"
3.9 The said suit was filed on 11.04.2008 as a summary
suit under Order XXXVII of the CPC before the learned
trial Court, being Summary Suit No. 15 of 2008.
3.10 Further, it transpires that after the filing of the suit,
summons were issued against the defendant under Order
XXXVII Rule 2(2) of the CPC. The said summons were
duly served upon the defendants; however, they failed to
enter appearance within the prescribed period of 10 days
from the date of receipt of summons. Consequently, the
learned trial Court proceeded the suit ex-parte, as the
defendants neither appeared nor filed an application for
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leave to defend.
3.11 Subsequently, in accordance with Order XXXVII Rule
2(3) of the CPC, the plaintiff filed the requisite affidavit.
Pursuant thereto, the learned trial Court was pleased to
partly allow the suit and passed an order directing that
the plaintiff is entitled to recover a sum of Rs. 53,00,000/-
from the defendants, along with interest at the rate of
18% per annum from the date of filing of the suit until
realization. The said Judgment and Decree was passed on
11.09.2008.
3.12 Being aggrieved and dissatisfied with the said
Judgment and Decree dated 11.09.2008 passed by the
learned trial Court, the present appeal has been
preferred by the defendants.
4. Heard learned advocate Mr. Jitendra Malkan,
appearing for learned advocate Ms. Khushboo Akash
Sheth for the appellants - original defendants, and
learned advocate Mr. Pritviraj Jadeja, appearing for
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learned advocate Mr. V. Gupta for the respondent -
original plaintiff.
5. Submissions made by the appellant - original
defendant.
5.1 Learned advocate Mr.Jitendra Malkan has submitted
that the Judgment and Decree dated 11.09.2008 passed
by the learned trial Court is ex facie illegal and contrary
to the settled principles of law, and therefore, deserves to
be set aside. It is further submitted that the present suit
is not maintainable as a summary suit under Order
XXXVII of the CPC.
5.2 He further submitted that the suit in question was
instituted by the plaintiff on 11.04.2008 and came to be
decreed within a period of 152 days. According to him,
upon a plain reading of the plaint, the suit ought not to
have been registered as a summary suit under Order
XXXVII of the CPC, as the reliefs prayed for do not fall
within the ambit of the said provision as the plaintiff also
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sought relief for declaration and permanent injunction.
5.3 It is therefore, submitted that the order of the
learned trial Court proceeding ex parte and the decree
passed therein are illegal and contrary to settled
principles of law, and are liable to be set aside.
5.4 It is further submitted that the original defendant
was prevented from appearing before the trial Court as
he was never duly served with the summons in the said
summary suit. It is therefore contended that since the suit
itself is not maintainable under Order XXXVII of the Code
of Civil Procedure, the Judgment and Decree passed by
the learned trial Court deserves to be quashed and set
aside.
5.5 Further, learned advocate Mr. Malkan, in support of
his submissions, has placed reliance upon the judgment
of this Court in Satellite Television Asian Region
Limited vs. Ajay Goods Pvt. Ltd., reported in 2009 (4)
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GLR 3248 (Gujarat High Court).
6. Submission made by the respondent-original
plaintiff.
6.1 Learned advocate Mr. Jadeja for the respondent -
original plaintiff has vehemently opposed the present
appeal and submitted that the summons were duly served
upon the original defendant before the learned trial
Court, but the defendant chose not to appear or file
appearance within the prescribed period of 10 days.
Consequently, the learned trial Court proceeded ex parte
in accordance with Order XXXVII of the CPC.
6.2 It is further submitted that under Order XXXVII of
CPC, if the defendant, after due service of summons, fails
to enter appearance and does not file an application for
leave to defend within the stipulated period, the suit is
liable to be proceeded ex parte and the plaintiff is
required to prove his claim by filing an affidavit and
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supporting documents, on the basis of which the decree is
passed.
6.3 It is further submitted that in the present case, the
suit has been filed under Order XXXVII of CPC, which
provides for a summary procedure. As per Order XXXVII
Rule 1(2), a summary suit can be filed, inter alia, on the
basis of bills of exchange and promissory notes. In the
present case, a promissory note was executed by
defendant Nos. 1 and 2 in favour of the original plaintiff,
and therefore, the suit is maintainable under Order
XXXVII of CPC.
6.4 It is further submitted that the learned trial Court
has not granted any relief of permanent injunction or
other discretionary reliefs, but has only awarded a
crystallized amount of Rs. 53,00,000/- along with interest.
Therefore, the contention of the learned advocate for the
appellant that the suit is not maintainable under Order
XXXVII of CPC is without any merit.
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6.5 It is further submitted that even otherwise, the
plaintiff is entitled to abandon part of his claim before
final judgment, and merely because certain reliefs have
not been pressed or granted, the maintainability of the
suit under Order XXXVII of CPC cannot be questioned.
Hence, the suit is rightly held maintainable under Order
XXXVII of CPC.
6.6 Further, in support of his submissions, learned
advocate Mr. Jadeja has placed reliance upon the
judgment of Sicom Ltd. vs. Prashant S. Tanna and
Ors., reported in AIR 2004 Bom 186, a Larger Bench
decision of the Hon'ble High Court of Bombay. Further
reliance is placed upon the judgment of this Court
(Division Bench) in First Appeal No. 1700 of 2006, and
allied matters including Special Civil Application No.
11373 of 2012, in the case of J.N. Education Society,
Trust and their Trustees and Ors. vs. Sangitaben N.
Thakker and Ors., wherein similar principles were
considered. It is, therefore, submitted that the present
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appeal is devoid of merit and deserves to be dismissed.
7. After hearing the rival submissions of the learned
advocates for the respective parties and perusing the
impugned judgment as well as the paper book and the
record and proceedings of the trial Court, this Court has
considered the matter.
8. For the purpose of deciding the present appeal, it is
appropriate to refer to the relevant rules of Order XXXVII
of the Code of Civil Procedure, 1908 which is reproduced
as under:
Order XXXVII of the Code of Civil Procedure,
1908(Summary Procedure)
"[1. Courts and classes of suits to which the
Order is to apply.-(1) This Order shall apply to
the following Courts, namely:-
(a) High Courts, City Civil Courts and
Courts of Small Causes; and
(b) Other Courts:
Provided that in respect of the Courts referred
to in clause (b), the High Court may, by
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notification in the Official Gazette, restrict the
operation of this Order only to such categories
of suits as it deems proper, and may also, from
time to time, as the circumstances of the case
may require, by subsequent notification in the
Official Gazette, further restrict, enlarge or
vary, the categories of suits to be brought
under the operation of this Order as it deems
proper.
(2) Subject to the provisions of sub-rule (1),
the Order applies to the following classes of
suits.
Namely:-
(a) Suits upon bills of exchange, hundies
and promissory notes;
(b) Suits in which the plaintiff seeks only
to recover a debt or liquidated demand in
money payable by the defendant, with or
without interest, arising.-
(1) On a written contract, or
(ii) on an enactment, where the sum sought to
be recovered is a fixed sum of money or in the
nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against
the principal is in respect of a debt or
liquidated Demand only.]
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[2. Institution of summary suits.-(1) A suit, to
which this Order applies, may if the plaintiff
desires to proceed hereunder, be instituted by
presenting a plaint which shall contain,-
(a) A specific averment to the effect that
the suit is filed under this Order;
(b) that no relief, which does not fall within
the ambit of this rule, has been claimed in
the plaint;
and
(c) the following inscription, immediately
below the number of the suit in the title of
the suit, namely:-
"(Under Order XXXVII of the Code of Civil
Procedure, 1908)."
(2) The summons of the suit shall be in
Form No. 4 in Appendix B or in such other
Form as may., from time to time, be
prescribed.
(3) The defendant shall not defend the
suit referred to in sub-rule (1) unless he
enters an 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 interest at the
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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 rules made in that behalf and such
decree may be executed forthwith.]"
9. Considering the aforesaid provisions of law as well
as the submissions advanced by the learned advocates for
the respective parties, the following points arise for
consideration before this Court:
i. Whether the appellant - original defendant
proves that the suit of the plaintiff is not
maintainable under Order XXXVII of the Code of
Civil Procedure, 1908 as a summary suit?
and
ii. What order?
10. My findings are as under:
i. In the affirmative
ii. As per final order.
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10.1 So far as the facts of the case are concerned, the
same have already been discussed. At this stage, it is
required to consider, on a plain reading of the plaint,
whether the suit filed by the plaintiff under Order XXXVII
of the CPC is maintainable as a summary suit.
10.2 In this regard, it is an undisputed fact that the
plaintiff's case is that a sum of Rs. 53,00,000/- was
advanced to defendant Nos. 1 and 2, and in consideration
thereof, a promissory note was executed by them in
favour of the plaintiff. It is further stated that the title
deeds of the property of defendant Nos. 1 and 2 were also
deposited with the plaintiff as security.
10.3 It is also not in dispute that, towards repayment of
the said amount, defendant Nos. 1 and 2 issued six
cheques in favour of the plaintiff, which were
subsequently dishonoured.
10.4 Now, so far as the plaint is concerned, the reliefs
have been sought by the plaintiff, more particularly in
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paragraphs 15 and 15.1 to 15.3 thereof. Considering the
same, it is necessary to refer to Order XXXVII Rule 2(1)
(b) of the CPC. The said provision provides that no relief
which does not fall within the ambit of Order XXXVII can
be claimed in a summary suit.
10.5 Under Order XXXVII Rule 2, a suit under the
summary procedure must contain specific averments that
the suit is instituted under this Order, that no relief
outside the scope of the said Order has been claimed and
there must also be a specific endorsement below the title
of the suit, namely: "(Under Order XXXVII of CPC)".
10.6 Thus, in terms of Order XXXVII Rule 2(1)(b), it is a
mandatory requirement that only such reliefs as fall
within the ambit of the said Order can be claimed in a
summary suit. However, a plain reading of the plaint
reveals that the plaintiff has not clearly complied with the
said requirement in its entirety.
10.7 He has not claimed any relief which does not fall
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within the ambit of Order XXXVII of the CPC. However, so
far as the prayers in paragraph 15(1) and 15(3) of the
plaint are concerned, the said prayers, on their plain
reading, do not fall within the scope of Order XXXVII
CPC. It is an admitted position that the reliefs sought
under prayers 15(1) and 15(3) are outside the ambit of
Order XXXVII of the CPC.
10.8 If it is considered that the suit is to be filed under
Order XXXVII of the CPC, then as per Order XXXVII Rule
2(2), the summons of the suit shall be in Form No. 4 in
Appendix B or in such other form as may be prescribed
from time to time. Accordingly, when the suit is filed as a
summary suit, summons are issued in Form No. 4.
10.9 Further, Order XXXVII Rule 3 provides the
procedure relating to appearance by the defendant. As
per Order XXXVII Rule 3(1), after service of summons
under Rule 2(2), the defendant is required to enter
appearance within 10 days either in person or through an
advocate. If the defendant fails to enter appearance
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within the stipulated period, the Court is empowered to
proceed ex parte against the defendant.
10.10 So far as the present case is concerned, it is an
admitted position that after service of summons, the
defendant did not enter appearance within 10 days. The
summons were issued by the Court under Order XXXVII
Rule 2(2) of the CPC, on the premise that the suit was
instituted as a summary suit under Order XXXVII of CPC.
10.11 However, from the reliefs claimed by the
plaintiff, more particularly in paragraphs 15(1) and 15(3)
of the plaint, it appears that the said reliefs do not fall
within the ambit of Order XXXVII of the CPC.
10.12 In this regard, if the suit itself is not
maintainable under Order XXXVII of the CPC, the
defendant has been deprived of a fair opportunity, which
would otherwise be available in a regular money suit. In a
regular suit, summons are issued and service is effected
in accordance with Order V of the CPC, and the
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defendant is entitled to file a written statement and other
pleadings as provided under Order VIII of the Code of
Civil Procedure.
10.13 The arguments of the learned advocate for the
respondent - original plaintiff, placing reliance upon the
judgment of the Larger Bench of the Hon'ble Bombay
High Court in Sicom Ltd. (supra), are concerned, it is
submitted that in paragraph 28 thereof it has been held
as under:
"28. In the circumstances, we summarise
the answer to the reference as follows:
(1) The judgments in Randerian & Singh v.
Indian Overseas Bank and Hydraulic and
General Engineering v. UCO Bank (1998) I LLJ
793 are overruled. The suit would be
maintainable as a summary suit if it falls within
one of the classes of suits enumerated in Order
XXXVII, Rule 1(2) even if the claim made
therein is not properly quantified or is in
excess of what the plaintiff is entitled to.
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(2) In a summary suit filed under Order XXXVII
of the Civil Procedure Code, the plaintiff is
entitled at any time to abandon or give-up a
part of the claim unilaterally. This, the plaintiff
may do by making a statement to be recorded
by the Court and without the necessity of the
plaintiff making a formal application for the
same by withdrawing the summons for
judgment, amending the plaint and thereafter
taking out a fresh summons for judgment or
otherwise.
(3) At the hearing of the summons for
judgment, it will be open to the Court to pass a
decree for a part of the claim and grant
unconditional leave to defend the suit in
respect of rest of the claim.
(4) At the hearing of the summons for
judgment, it is open to the Court to grant
conditional leave to defend in respect of a part
of the claim and unconditional leave to defend
for the remaining part of the claim. In such an
order it would follow that in the event of the
defendant failing to comply with the condition,
he would suffer the consequences mentioned in
Order XXXVII qua only that part of the claim
for which conditional leave to defend has been
granted and not in respect of that part of the
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claim for which unconditional leave has been
granted.
(5) There may be further options available to
the Court while passing an order on the
summons for judgment. Our judgment does not
exhaustively set out the options. Obviously,
judicial discretion has to be exercised in
consonance with the settled legal principles
governing grant of leave to defend in summary
suits."
10.14 So, as per the settled legal position, in a suit
filed under Order XXXVII of the Code of Civil Procedure,
the plaintiff is entitled at any stage to abandon or give up
part of the claim; however, such abandonment must be
made by the plaintiff at the appropriate stage, and the
same is required to be recorded by the Court. Thereafter,
the plaintiff may withdraw the summons for judgment,
amend the plaint, and thereafter take out fresh summons
for judgment in respect of the remaining claim.
10.15 In the present case, it appears that no such
abandonment of any claim has been made by the plaintiff.
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The Court has proceeded to pass a decree under Order
XXXVII Rule 2 without following the aforesaid procedure.
Further, reliance is placed on the decision of the Larger
Bench of the Hon'ble Bombay High Court, wherein it has
been held that if any relief does not fall within the ambit
of Order XXXVII CPC, then appropriate procedural
compliance is required, including issuance of fresh
summons and recording of the plaintiff's statement by the
Court. In the present case, the said procedure has not
been followed.
10.16 Further, learned advocate Mr.Prithviraj Jadeja
for the respondent has also relied upon the decision of
this Court in J.N. Education Society, Trust & Their
Trustees & Ors. (supra), wherein the Division Bench of
this Court, in paragraph 20, has held as under:
"20. It is true that if in a Summary Suit some
additional claims are made which do not fall
within the purview of Order 37 Rules 1 and 2
of the Code, the plaintiff can, at any time,
abandon his additional claim to bring the suit
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within the purview of Order 37 Rules 1 and 2
of the Code. In the case before us, no such
prayer was made and the court has decreed
the suit in full even in respect of additional
claims not covered by Order 37 of the Code in
clear violation of rule 2 (1) (b) of Order 37. On
reading the plaint as a whole, we are at one
with Mr. Nanavati, the learned Senior
Advocate appearing on behalf of the appellants
that it was not within the competence of the
learned trial Judge to decide the suit as a
Summary Suit as the plaint stands. Since the
plaintiffs did not pray for abandonment of any
part of the claim, it was the duty of the learned
trial Judge to direct the defendants to file their
written statement and decide the suit as a
regular suit. There is no doubt that the
defendants did not file any written statement
but made a prayer within the time fixed by law
for filing written statement for deregistration
of the suit by urging a preliminary point and
the Court repeatedly adjourned such
application. The Court also did not reject the
prayer for preliminary hearing, which gave an
impression in the mind of the defendants that
they are not required to pray for leave to file
written statement."
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10.17 As per the decision of this Court, it has been
held that if the plaintiff has not prayed for or has not
abandoned any part of the claim, it is the duty of the trial
Court to direct the defendant to file a written statement
and thereafter proceed to decide the suit as a regular
suit.
10.18 Thus, considering the aforesaid two decisions
relied upon by the learned advocate for the respondent -
original plaintiff, it is clear that where any claim or relief
sought in the plaint does not fall within the ambit of
Order XXXVII of the CPC, it is incumbent upon the Court
to ensure appropriate procedural compliance, including
issuance of proper summons and, if necessary, to proceed
with the suit as a regular suit in accordance with law.
10.19 As discussed above, in the present case the
Court has decided the suit under Order XXXVII of the
CPC as a summary suit, despite the fact that the reliefs
prayed for by the plaintiff do not fall within the ambit of
Order XXXVII CPC. However, the Court has not granted
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those reliefs, and no abandonment of such reliefs has
been made by the plaintiff.
10.20 In such circumstances, if the Court had come to
the conclusion that the reliefs were not maintainable
under Order XXXVII of CPC, it ought to have issued fresh
summons to the defendant and granted an opportunity to
appear and contest the suit. However, in the present
case, summons were issued under Order XXXVII Rule
2(2) in Form No. 4, directing the defendant to enter
appearance within 10 days from the date of due service.
Since the defendant did not enter appearance within the
stipulated period, the decree came to be passed ex parte.
11. As discussed above, in the present case, the Court
has decided the suit under Order XXXVII of the CPC as a
summary suit, despite the fact that the reliefs prayed for
by the plaintiff do not fall within the ambit of Order
XXXVII CPC. Although such reliefs have not been granted
by the Court, the same were not expressly abandoned by
the plaintiff. In such circumstances, once the Court comes
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to the conclusion that the reliefs sought are not
maintainable under Order XXXVII CPC, it is incumbent
upon the Court to issue fresh summons and proceed with
the suit in accordance with the procedure applicable to a
regular suit.
12. Considering the above, the suit is not maintainable
under Order XXXVII of CPC as discussed hereinabove.
Hence, the Judgment and Decree passed by the learned
trial Court are required to be set aside, and the matter
deserves to be remanded to the learned trial Court for a
fresh decision after granting due opportunity to both
parties. The defendant shall be permitted to file a written
statement, and both parties shall be allowed to lead oral
as well as documentary evidence. The suit shall
thereafter, be decided as a regular money suit in
accordance with law, and not under Order XXXVII of the
Code of Civil Procedure.
13. As discussed hereinabove, the Judgment and Decree
dated 11.09.2008 passed by the learned trial Court are
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set aside. Accordingly, Issue No.1 is answered in the
affirmative.
14. In view of the above, this Court is of the considered
opinion that the suit filed by the plaintiff is not
maintainable under Order XXXVII of the Code of Civil
Procedure. Hence, the present appeal being Appeal
No.4221 of 2009 is hereby allowed.
15. The Judgment and Decree dated 11.09.2008 passed
by the learned 10th Additional Senior Civil Judge, Surat in
Summary Civil Suit No. 15 of 2008 are hereby quashed
and set aside. The matter is remanded to the learned trial
Court for fresh adjudication on merits.
16. The learned trial Court shall proceed with the suit as
a regular money suit in accordance with law. The
defendants shall be given an opportunity to appear and
file their written statement. Both parties shall be
permitted to adduce oral as well as documentary
evidence, and the suit shall thereafter, be decided on
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merits in accordance with law.
17. The learned trial Court is directed to decide the suit
expeditiously, preferably within a period of one year from
the date of receipt of this order. The parties are directed
to cooperate with the trial Court for early disposal of the
suit.
18. Decree to be drawn accordingly.
(BHARGAV D. KARIA, J)
(L. S. PIRZADA, J)
STANCY GOMES
