Man Singh vs Ranveer Singh
2021 Latest Caselaw 597 MP

                                       1
                                                                M.P.2461/2020




     THE HIGH COURT OF MADHYA PRADESH, JABALPUR

Miscellaneous Petition No.           2461 Of 2020

                                     Man Singh
Parties Name:                             Vs.
                                     Ranveer Singh
Bench Constituted                    Hon'ble Shri Justice Vishal Dhagat
Whether approved for                 Yes/No
reporting
Name of Advocates for parties For Petitioner:- Shri Abhijeet Awasthi,
                              learned counsel.

                                     For Respondent: Shri Amit Sahani,

learned counsel.

Law laid down Significant paragraph numbers

(O R D E R) 10/03/2021

Petitioner has filed the present miscellaneous petition challenging order dated 13.08.2019 contained in Annexure-P/7. By said order, learned trial Court has held that case will be tried as regular suit and not as summary suit as complaint filed under Section 138 of Negotiable Instrument Act, 1881 was dismissed, thereafter appeal was also dismissed. Therefore, case for recovery of money involved complicated questions. Suit has been registered as Class-B suit and procedure adopted is like in regular suit. Plaintiff has not raised any objection at time of appearance of defendant that civil suit is filed as a summary suit and, therefore, it was ordered that civil suit shall be heard as regular suit.

2. Petitioner/plaintiff submitted that he had filed the suit in format of summary suit under Order 37 of CPC. Trial Court ought to have issued notice to defendant in Form-4 of Appendix-B of CPC.

M.P.2461/2020

3. It is submitted by counsel appearing for petitioner that act of Court may not cause injury or harm to a party. He relied on the maxim of actus curiae neminem gravabit.

4. Counsel appearing for petitioner has relied on judgment reported in (2008) 8 SCC 505; Dr. Purushotama Reddy and another Vs. K. Sateesh, in para-9 it is held as under:-

"9. A suit for recovery of money due from a borrower indisputably is maintainable at the instance of the creditor. It is furthermore beyond any doubt or dispute that for the same cause of action a complaint petition under terms of Section 138 of the Act would also be maintainable."

5. Counsel appearing for respondent/defendant submitted that defendant will be prejudicially affected if suit is tried as a summary suit. As per the procedure of summary suit, defendant has to file an application for permission to defend the case. No such application has been filed. Notice was issued to respondent in Form 1 of CPC. Petitioner has not raised any objection initially and now he cannot raise any objection that suit ought to have been tried as a summary suit. Respondent will suffer adversely as limitation prescribed for filing an application for permission to defend the suit is already over. Trial Court has rightly passed the order that suit is to be tried as a regular suit and not as a summary suit because civil suit involved complicated questions. In view of same, he made submission that this miscellaneous petition be dismissed.

6. Counsel appearing for respondent submitted that miscellaneous petition has been filed after delay and same has not been explained. There is no error of jurisdiction in the order passed by the trial Court and procedure prescribed under Order 37, Rule 3 (4) of CPC is not complied with, therefore, trial Court has rightly passed the order.

7. Counsel for respondent relied on judgment reported in 2001 SCC Online P & H 111 (Atma Tube Products Ltd. Vs. Steel Authority of

M.P.2461/2020

India Ltd.). In the said judgment, it was held that in a suit which is filed as summary suit under Order 37 Rules 2 and 3, it is mandatory to issue summons in format Form No.4 (Appendix-B). Since defendants were not served as per provision of Order 37 of CPC, suit was to be treated as a regular suit. Issuing of summons in Form-4 (Appendix-B) is mandatory so far as suit filed under Order 37 of CPC are concerned and summons were issued to defendant in regular suit. High Court directed the trial Court to treat the present suit as a regular suit. Trial Court cannot deprive the defendant to contest the suit.

8. Heard the counsel for petitioner as well as respondent.

9. Order 37 applies to the suit filed upon bill of exchange, hundi and promissory note. Suit was filed by petitioner to recover liquidated demand on basis of bill of exchange. Therefore, in a suit filed by petitioner Order 37 of CPC is attracted. Petitioner has instituted the suit making specific averments that suit is filed under Order 37 of CPC. Order 37, Rule 2 of CPC was complied with by the plaintiff. After filing of suit, it is for the Court to issue the summons and as per Order 37 Rule 2(2) of CPC summons of summary suit shall be in Form-4 in Appendix-B. Further as per Order 37 Rule 2 (3) and Order 37 Rule 3, on the day defendant enters appearance, notice of appearance is to be given by defendant to plaintiff's pleader and plaintiff shall thereafter serve on defendant a summon for judgment in Form 4A in Appendix-B supported by an affidavit verifying cause of action and amount claimed and defendant may at any time within 10 days from service of such summons for judgment, apply for leave to defend such suit and Court may grant leave on such terms as it deems fit to defendant.

10. In this case, Order 37 of CPC is attracted as suit is filed for recovery on basis of cheque. Petitioner has filed summary suit, therefore, only because due to mistake of Court, notice was issued to defendant as in a regular suit, suit filed by petitioner can not be treated to be regular suit. Act of Court should not cause injury to any litigant. Plaintiff/petitioner has not raised objection initially. Therefore, it can

M.P.2461/2020

not be said that he had waived off his rights. Suit was drafted and filed as summary suit by plaintiff and he cannot be allowed to suffer due to mistake of Court. In Atma Tube Products Ltd. (supra), Court ordered to hear suit as regular suit to save defendant from prejudice. In this case, rights of defendants are protected and matter is sent back to trial Court to start from same stage where mistake was committed.

11. In view of same, miscellaneous petition filed by petitioner/plaintiff is allowed. Order passed by the trial Court is set aside. Trial Court is directed to treat the suit as a summary suit. Petitioner/plaintiff and respondent/defendant shall appear before trial Court on 22.03.2021 and on said date trial Court will handover summon to respondent's counsel in Form-4 Appendix-B and fix a date whereafter parties will proceed as per Order 37 Rule 3 of CPC.

12. With the aforesaid direction, miscellaneous petition is disposed off.

C.C. as per rules.

(Vishal Dhagat) Judge sp/-

SUNIL Digitally signed by SUNIL KUMAR PATEL DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=GOVERNMENT, postalCode=482001, st=Madhya

KUMAR Pradesh, 2.5.4.20=3ad456309c8cfa67fdf9acdac69 49bbc6ea3342f02b1af1bdaf3424a04c1 1d99, serialNumber=5011b37a3dd5e32019f5

PATEL 01f10e878d2f118732491b5f40bdc9923 237d954365b, cn=SUNIL KUMAR PATEL Date: 2021.03.10 18:04:51 +05'30'