1991 PLP 1243 (CLC)

The other ground which was pressed before me is that the nature of the claim made in the suit was not covered by the provisions of Order 37, C.P.C. and, therefore, the suit under that Order was not maintainable but it had to be tried by following the ordinary procedure and, therefore, a prejudice had been caused to the defendant as, thereby he was not only required to seek permission to defend the suit but he was restricted to do so within 10 days of the service of the summons. To support this my attention was drawn to some items in the statement of account filed along with the plaint, which, according to the learned Counsel could not be included in a suit to be riled under Order 37, C.P.C. In order t9 appreciate the contention, it is necessary, at the outset, to refer to Rule 2 to Order 37, C.P.C.. It reads as under:‑ "(1) All suits upon bills of exchange, hundis or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed but the summons shall be in Form No.4 in Appendix, B or in such other form as may be from time to time prescribed. (2) In any case in which the plaint and summons are in such forms, respectively the defendant shall notappear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend~ and, in default of his obtaining such ]cave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree‑ (a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the ‑case may be, of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit, or for the sum mentioned in the summons, which ever is less, and for interest upto the date of the decree at the same rate or at such other rate as the Court thinks fit and (b) for such consequent interest; if any, as tile Court may order under section 34 of this Code; and (c) for such sum for costs as may be prescribed: Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ordinary way. (3) A decree passed under this rule may be executed forthwith." The procedure to be adopted under Order 37, C.P.C. is a summary procedure, conferring certain advantages to the plaintiff and abridging the rights of the defendant. Rule 2 enables the plaintiff to enforce the claim on the bill of exchange, a hundi and a promissory note, by bringing a summary suit. By choosing this procedure, the plaintiff receives an advantage that the defendant is not entitled as of right to be heard in defence but he must apply for leave within 10 days of the service of summons upon him and in case he fails to apply or the leave is refused, the plaintiff is entitled to a decree. Of course, in certain cases depending upon the circumstances, the time to apply for leave can be extended by the Court, In order to entitle the plaintiff to elect to file such a suit, it is a condition precedent that the claim must be based on the aforesaid documents alone and no other claim can be included in such a suit. If this condition is not fulfilled, no option is available to the plaintiff much less the summary procedure prescribed by the rule can be adopted but the suit must be riled under the ordinary procedure. The present application to set aside the ex parte decree was made under Rule 4, which reads as under: "After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit." This Rule permits the defendant to apply for setting aside an ex parte decree. The power of the Court under this Rule to set aside ex parte decree is not confined to those cases where the defendant does not appear in answer to the summons but the power extends to any ex parte decree passed in a summary suit under Rule

2. The Rule is, however, subject to the condition that there must be some special circumstance to support any such request made by the defendant, otherwise the Court will not be justified to set aside the decree which had been passed. The merits of the defence can be considered to be a special circumstance with in the meaning of the Rule. In this connection I would like to refer to the following observation made in the case of' Ramchandra Dhandu Dalvl v. Vithaldas Gokuldas' reported in A I R 1904 Bombay 25 1, decided by Division Bench: "Order 37, Rule 4 applies to a suit as has resulted into a decree onder the summary procedure and it enables the Court to set aside "the decree" which means the decree made under 0.37, R.2 (2). Rule 2 contemplates two circumstances under which a decree can be made‑‑one, where the defendant fails to obtain leave to defend; and second, where having obtained such leave he does not appear and defend the suit in pursuance of the leave. On satisfaction of either of these conditions, the consequence provided by rule 2 (2) must follow and result into a decree. The words "after decree the Court may' in RA must mean after such decree as is made under R.2. The words "decree" is applicable to a decree obtained in either eventuality and in the absence of any thing else either kind of decree can be set aside by the Court if conditions laid down in the rule are satisfied. However, when an application is made to the Court to set aside an ex parte decree the Court ought to seriously apply its mind to the merits of the defence in particular, the stage at which and the time when the defence of the particular nature was taken, by him for the first time and if the Court is satisfied that there is some substance in the defence and the other conditions of the rule are satisfied then only the Court can set aside the ex parte decree." The earlier view taken by a single Judge of the same High Court in the case of 'Mrs. Ramaben Paliegubhat Patel v. The Hindustan Electric Co. Ltd. reported in A I R 1963 Bombay 85 was overruled. This brings me to consider the merits of the contention. It is clear from the statement of accounts that several items such as amount by transfer, salary and allowance of the staff, conveyance charges, cash and stamp amounting to Rs.20,308/40 had been claimed besides the amount due under the promissory note and interest thereon. It be further noted that interest is also charged on the additional items and included in the claim in suit. The additional items, as already held, cannot be included in such a suit. Since in the present case the summary procedure as laid down by Order 37, C.P.C. was followed and the defendant was debarred from defending the suit for reason of the fact that the application for permission to defend was made beyond time, he was greatly prejudiced, by having been deprived of a valuable right to defend the suit. It is important that the litigants should not be thrown out from their rights. In case of ordinary procedure no such permission is needed and no period of limitation is prescribed, although the defendants may be required by the Court to rile the written statement within a particular time which can also be extended from time to time looking to the circumstances of each case. In the circumstances I allow the application and set aside the decree and order that this suit be tried by following the ordinary procedure. The defendant should rile the written statement within a fortnight. H.B.T./N‑358/K Application allowed.