Yash Kumar Goyal vs Pradeep Shivhare
2022 Latest Caselaw 15941 MP

                                    1
IN     THE       HIGH        COURT OF MADHYA                            PRADESH
                              AT GWALIOR
                          BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                     ON THE 1 st OF DECEMBER, 2022
                     MISC. PETITION No. 1758 of 2020

BETWEEN:-
YASH KUMAR GOYAL S/O LATE SHRI HARISHANKAR
GOYAL, AGED ABOUT 57 YEARS, KHATKE SAHAB KA
BADA, DAL BAZAR, LASHKAR (MADHYA PRADESH)

                                                                      .....PETITIONER
( BY SHRI PRAKASH CHANDRA CHANDIL - ADVOCATE)

AND
PRADEEP SHIVHARE S/O CHIRONJILAL SHIVHARE,
AGED ABOUT 47 YEARS, LAXMIBAI COLONY, PADAV,
LASHKAR (MADHYA PRADESH)

                                                                .....RESPONDENTS
(BY SHRI SANJAY SHUKLA - ADVOCATE)

      This petition coming on for hearing this day, th e court passed the
following:
                                     ORDER

Aggrieved by the order passed by Second Additional District Judge,

Gwalior in Civil Suit No.87-B/2019 on 14.02.2020 by which respondent has been granted last chance to defend, petitioner filed this petition.

In brief facts of the case are that petitioner has filed a Civil Suit for recovery of money under Order 37 of C.P.C. Grievance of the petitioner is that trial Court without following the procedure prescribed under Order 37 Rule 3 (4) of C.P.C. gave respondent a chance to defend which is against the provisions of procedure laid down in the aforesaid rule.

Learned counsel for the respondent submitted that facts of the case are

entirely different. Learned trial Court has not committed any mistake.

On going through the certified copy of the plaint, it is clear that petitioner has filed a Civil Suit for recovery of money under Order 37 of C.P.C. and as per provision of Order 37 Rule 3(4) of C.P.C. when notice of judgment is served on defendant 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. 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 upon such terms as may appear to the Court or Judge to be just.

Looking to the aforesaid facts, the learned Trial has not followed the procedure of law laid down in the Order 37 Rule 3, 4 and 5 of C.P.C.

The order dated 14.02.2020 passed in COS No.87-B/2019 is set-aside. The case may be remanded back with a direction to the trial Court by following the procedure of law laid down under Order 37 Rule 3 (4)and (5) and try the Civil Suit.

With the aforesaid directions, the petition is allowed and disposed of.

(DEEPAK KUMAR AGARWAL) JUDGE mani

SUBASRI MANI 2022.12.02 10:42:08 -08'00'