Mayengbam Shyamanand @ Tim vs Alemla Imti Longkumar @ Alemla ...
2022 Latest Caselaw 267 Mani

            Digitally signed
LAIRENM by
         LAIRENMAYUM
AYUM INDRAJEET
INDRAJE SINGH
         Date:
                                          IN THE HIGH COURT OF MANIPUR
ET SINGH 2022.06.16
         14:38:43 +05'30'                           AT IMPHAL

                                       CIVIL REVISION PETITION NO. 7 OF 2018

              Mayengbam Shyamanand @ Tim, aged about 41 years,
              s/o Late M.Ibotombi Singh of Kwakeithel Thokchom Leikai,
              P.O. & P.S.Imphal, Imphal West District, Manipur-795001.

                                                                           .............. Petitioner/Plaintiff

                                       - Versus -
              Alemla Imti Longkumar @ Alemla Songla Imti Longkumar @ Sweety,
              aged about 47 years, d/o late Imti Longkumar, C/o Mr.Swalemba
              Longkumar, Ex-MLA, House No.88, Marine Mansion, Near Hotel Senti,
              Overbridge, Gholaghat Road, Dimapur, Nagaland, Pin Code-797 112.

                                                                          ....... Respondent/Defendant

BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR

For the Petitioner/Plaintiff : Mr. R.K.Milan, Advocate For the Respondent/Defendant : Mr. I.Sandeep, Advocate Date of Judgment & Order : 14.06.2022

JUDGMENT & ORDER (ORAL)

[1] The petitioner in this Civil Revision Petition filed under Section 115 CPC

is the plaintiff in Original (Money) Suit No.252 of 2016 on the file of the learned

Civil Judge (Senior Division), Imphal West. The said suit was filed by him against

his estranged wife under Order 37 CPC for recovery of a sum of `40 lakh on the

strength of a promissory note. By judgment and order dated 05.12.2016, the Trial

Court decreed the said suit and ordered that the Branch Manager, Vijaya Bank,

Dimapur Branch, shall have liberty to release the wife's deposited amount of `40

CRP No. 7 of 2018 Page 1 lakhs in favour of the plaintiff. Judicial Miscellaneous Case No.219 of 2016 was

thereupon filed by the wife under Order IX Rule 13 CPC read with Order XXXVII

Rule 4 CPC and Section 151 CPC to set aside the judgment and decree dated

05.12.2016. By order dated 01.10.2018, the Trial Court allowed the said

miscellaneous case; set aside the judgment and decree dated 05.12.2016 and

granted her leave to defend. Aggrieved thereby, the husband filed this revision.

[2] Heard Mr. R.K.Milan, learned counsel, for the petitioner; and

Mr. I.Sandeep, learned counsel, appearing for the respondent.

[3] Parties shall hereinafter be referred to as 'the husband' and 'the wife'

respectively.

[4] At the outset, it may be noted that Order XXXVII Rule 4 CPC is distinct

from Order IX Rule 13 CPC and the factors that would weigh with the Court while

dealing with an application under Order XXXVII Rule 4 CPC would be entirely

different from those that would have relevance in an application under Order IX

Rule 13 CPC {See Rajni Kumar vs. Suresh Kumar Malhotra (2003) 5 SCC

315}. Therefore, the Trial Court ought to have been mindful of the distinction

drawn by the Supreme Court in the above decision between applications filed under

these two provisions, while dealing with the subject application filed by the wife.

However, the Trial Court failed to take note of the same.

[5] That being one aspect of the matter, it is well settled that the summary

procedure prescribed under Order XXXVII CPC sets apart the suits filed thereunder

on a different footing and it is only to the extent that the said Order does not

prescribe the procedure that the procedure in ordinary suits would be adopted

CRP No. 7 of 2018 Page 2 (Order XXXVII Rule 7 CPC). It would therefore be necessary to take note of the

procedure prescribed thereunder. Order XXXVII Rule 1 prescribes the Courts and

classes of suits to which the said Order applies. Suits based upon bills of exchange,

hundies and promissory notes are covered thereby. Order XXXVII Rule 2 provides

the procedure to be followed by the plaintiff while instituting a suit under this

Order. Order XXXVII Rule 2(2) states that the summons in the suit shall be in Form

No.4 in Appendix B and Order XXXVII Rule 2(3) states that the defendant shall not

defend the suit unless he enters appearance and, in default of his entering

appearance, the allegations in the plaint shall be deemed to be admitted and the

plaintiff would be entitled to a decree for the sum mentioned in the summons with

interest and costs. Order XXXVII Rule 3 deals with the procedure for the

appearance of the defendant. Sub-rule (1) thereof states that the plaintiff shall

serve upon the defendant along with the summons, a copy of the plaint and the

annexures thereto, and the defendant may, at any time within ten days of such

service, enter appearance either in person or by pleader and, in either case, he

shall file in Court an address for service of notices upon him. Order XXXVII Rule

3(3) states that on the day of entering appearance, notice of such appearance shall

be given by the defendant to the plaintiff's pleader or to the plaintiff, if suing in

person, either by notice delivered at or sent by a pre-paid letter to the address of

the plaintiff's pleader or of the plaintiff, as the case may be. Order XXXVII Rule 3(4)

states that if the defendant enters appearance, the plaintiff shall serve on the

defendant the summons for judgment in Form No.4A in Appendix B, returnable not

less than ten days from date of service, supported by an affidavit. Order XXXVII

CRP No. 7 of 2018 Page 3 Rule 3(5) states that the defendant may, at any time within ten days from the

service of such summons for judgment, by affidavit or otherwise, disclose such

facts as may be deemed sufficient to entitle him to defend, and apply 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 to be just. Order XXXVII Rule 3(6)

states that at the hearing of such summons for judgment, if the defendant has not

applied for leave to defend or if such application, if made, has been refused, the

plaintiff shall be entitled to judgment forthwith. On the other hand, if the defendant

is permitted to defend against the whole or any part of the claim, the Court may

direct him to give such security within such time, as may be fixed, and in the event

of failure to give such security within the time specified or in carrying out any other

directions given by the Court, the plaintiff shall be entitled to judgment forthwith.

Order XXXVII Rule 3(7), however, empowers the Court to excuse the delay on the

part of the defendant in entering appearance or in applying for leave to defend, if

sufficient cause is shown. Order XXXVII Rule 4 empowers the Court, even after the

decree is passed, to set it aside if special circumstances are made out and, if

necessary, stay or set aside execution also and grant leave to the defendant to

defend the suit. Such discretion is to be exercised if it seems reasonable to the

Court to so do and on such terms as the Court thinks fit.

[6] In Rajni Kumar (supra), the Supreme Court was dealing with a case

where a suit was filed under Order XXXVII CPC and the summons were sent by

Registered Post with Acknowledgement Due to the defendant therein. The Court

inferred deemed service upon him, proceeded with the case and decreed the suit

CRP No. 7 of 2018 Page 4 ex parte. Thereupon, the defendant filed an application under Order XXXVII Rule 4

CPC to set aside the decree. Holding that no special circumstances were made out,

the Trial Court dismissed the application. The High Court confirmed the same.

Before the Supreme Court, it was contended that there was no proof to show that

the notice sent by Registered Post with Acknowledgment Due was served upon the

defendant. This was the basis for the argument that a 'special circumstance' was

made out to set aside the decree. The Supreme Court observed that the expression

'special circumstances' was not defined in the Civil Procedure Code and was not

capable of precise definition. While noting that non-service of summons would

undoubtedly be a 'special circumstance', the Supreme Court opined to the effect

that the Court would have to determine that question on the facts of the individual

case and the issue as to whether the circumstances pleaded are so unusual or

extraordinary as to justify putting the clock back, by setting aside the decree, would

have to be determined by the Court on a case-to-case basis. The Supreme Court

further observed that as the very purpose of Order XXXVII is to ensure expeditious

hearing and disposal of the suit filed thereunder, it is not enough for the defendant

to show only those special circumstances that prevented him from appearing or

applying for leave to defend and he also has to show, by affidavit or otherwise,

facts which would entitle him to leave to defend the suit. In this respect, per the

Supreme Court, Order XXXVII Rule 4 is different from Rule 13 of Order IX CPC.

[7] In the light of the aforestated settled legal position, the facts of the

case on hand may be examined. In her application filed under Order XXXVII Rule 4

CPC, the wife admitted that she had entered appearance before the Trial Court on

CRP No. 7 of 2018 Page 5 16.11.2016 after receiving the summons in the suit. She claimed to have furnished

her address for service of notices upon her to the learned counsel appearing for the

husband, the plaintiff in the suit. According to her, the husband never served any

summons for judgment and, therefore, she had no opportunity to seek leave to

defend the suit. Having stated so, she then cited the following as 'special

circumstances': 1) the plaintiff did not comply with the provisions of Order V CPC

while taking steps for service of notice; 2) the plaintiff did not file any document

before the Court to show that the defendant received the summons ten days before

entering appearance and furnishing her address on 16.11.2016; 3) assuming, but

not admitting, that the registered address furnished by the defendant through her

counsel on 16.11.2016 did not comply with the rule, her right to avail summons for

judgment did not stand forfeited; 4) if the plaintiff had served notice for summons

for judgment, the defendant would have had a chance to avail leave to defend;

5) the defendant never executed the promissory note dated 10.08.2015; 6) even

assuming that the said promissory note existed, it showed that it was executed at

Imphal but the consideration/transaction took place at Dimapur and, therefore, the

Trial Court had no jurisdiction; and 7) there is no material to show that the

defendant received the summons within 30 days.

It was on these grounds that she sought setting aside of the judgment

and decree dated 05.12.2016 passed in the suit.

[8] In his written objections to the miscellaneous case, the husband

pointed out that the bank account of the wife at Vijaya Bank, Dimapur, was

attached on 29.07.2016 pursuant to the direction of the Trial Court. He then stated

CRP No. 7 of 2018 Page 6 that summons along with the plaint and annexures were received by the wife on

07.10.2016, as per the record of the Post Office. He further stated that her

appearance before the Trial Court and her adherence, if any, to procedures

prescribed under Order XXXVII CPC was a matter of record. He however admitted

that she had furnished her address and that the same was the address given by her

in the pending proceedings before the Family Court. According to him, the facts, as

cited by her, did not constitute 'special circumstances' under Order XXXVII Rule 4

CPC. He then stated that the Vijaya Bank implemented the decree dated

05.12.2016 by transferring the decretal amount to his account on 21.12.2016.

[9] Significantly, this last aspect was noted by the Trial Court in the

impugned order dated 01.10.2018 as one of the contentions urged by the learned

counsel for the husband. However, the Trial Court did not deal with this crucial fact

while setting aside the judgment and decree dated 05.12.2016 and granting leave

to defend to the wife. On the other hand, the Trial Court seems to have been more

concerned with the manner in which the husband had served summons upon the

wife and came to the conclusion that he failed to abide by the procedure prescribed

under Order V CPC.

[10] Had it been a case where the defendant in the suit did not even enter

appearance and the decree was passed ex parte, improper service of summons or

failure to serve summons assumes importance and would constitute a 'special

circumstance' as pointed out by the Supreme Court in Rajni Kumar (supra).

However, that was not the situation in the case on hand. Admittedly, the wife

entered appearance in the suit in November, 2016. In effect, the manner in which

CRP No. 7 of 2018 Page 7 the summons was served upon her paled into insignificance after that event. That

issue therefore did not constitute a 'special circumstance' that could have weighed

with the Trial Court to set aside the judgment and decree.

[11] That being said, the scheme of Order XXXVII CPC clearly manifests that

after the defendant enters appearance, the plaintiff in a suit filed thereunder must

serve upon the said defendant the summons for judgment in Form No.4-A in

Appendix B, 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. It is only after the service of such

summons for judgment that the defendant can come forward to seek leave to

defend. In effect, the Trial Court would also be empowered to pass judgment only

after the service of such summons for judgment and consequential developments,

in terms of leave to defend being granted or denied or being granted conditionally.

[12] Admittedly, the husband did not issue summons for judgment in Form

No.4-A in the case on hand. Despite the same, the Trial Court proceeded with the

matter and decreed the suit. This aberration from the prescribed procedure may

constitute a 'special circumstance' for invocation of the power under Order XXXVII

Rule 4 CPC. However, there is no consideration whatsoever of this sine qua non by

the Trial Court in the order under revision. Further, the Trial Court did not even

consider the impact of the decree having already been implemented. In the

judgment and decree dated 05.12.2016, the Trial Court specifically ordered that the

Branch Manager, Vijaya Bank, Dimapur Branch, shall have liberty to release the

deposited amount of `40 lakhs in favour of the plaintiff. In the light of this liberty,

CRP No. 7 of 2018 Page 8 it appears that, on 21.12.2016, the Vijaya Bank remitted the amount due and

payable to the husband under the decree dated 05.12.2016.

[13] Though Order XXXVII Rule 4 CPC also empowers the Trial Court to set

aside an execution, it is for the Trial Court to take note of the execution already

effected and pass appropriate orders in relation thereto. In the case on hand, the

Trial Court, despite noting the contention of the husband that the decree had

already been acted upon, did not deem it necessary to consider that aspect while

setting aside the decree and granting leave to defend. On the other hand, the Trial

Court baldly stated that the question of staying the operation of the decree did not

arise as the decree itself was set aside. In making this observation, the Trial Court

clearly lost sight of the fact that the amount due and payable under the decree had

already been remitted to the husband. The Trial Court necessarily had to pass

appropriate directions as regards this aspect but the order under revision is silent

on that count.

[14] Be it noted that Section 144 CPC, which deals with restitution, would

not be applicable in this situation as that provision deals with cases where the

decree or order is varied or reversed in an appeal, revision or other proceedings or

is set aside or modified in a suit instituted for the purpose and, in such a situation,

the Court which passed the decree or order shall, on the application of a party

entitled to any benefit by way of restitution or otherwise, cause such restitution to

be made as would place the parties in the position which they would have occupied

but for such decree or order. The special power conferred upon the Trial Court

CRP No. 7 of 2018 Page 9 under Order XXXVII Rule 4 CPC, therefore, stands on a different footing from the

power of the Court under Section 144 CPC.

[15] Viewed thus, as the Trial Court presently under revision leaves a lot of

aspects unanswered and proceeded on a ground which, prima facie, did not

constitute a 'special circumstance' for exercise of power under Order XXXVII Rule 4

CPC, this Court is left with no alternative but to set aside the said order and remit

the matter to the Trial Court for consideration afresh. This Court is informed that

though no stay was granted in this revision, the Trial Court has not proceeded

further in the matter after setting aside the judgment and decree.

The Trial Court shall consider afresh Judicial Miscellaneous Case No.

219 of 2016 on its own merit and in accordance with law, duly keeping in mind the

observations made hereinabove, and dispose of the same as expeditiously as

possible and, preferably, within one month from the date of receipt of a copy of

this order.

The Civil Revision is accordingly allowed to the extent indicated above.

In the circumstances, there shall be no order as to costs.

                                                         CHIEF JUSTICE

FR/NFR
Opendro




CRP No. 7 of 2018                                                               Page 10