SHAH DUSHYANT CHANDRAKANTBHAI Vs. SAGAR SHANTILAL GANGARAM

JUDGEMENT

(1.) This Civil Revision Application is preferred by the applicant-original plaintiff under Section 115 of Code of Civil Procedure, 1908, challenging the legality and validity of the order dated 10.7.2009 passed by the Principal Civil Judge, Prantij below Exh.13 in Regular Summary Suit No. 6 of 2009, whereby, the Summary Suit instituted by the applicant was directed to be proceeded with as Regular Civil Suit.

(2.) As per the case of the applicant, applicant-original plaintiff and opponent-original defendant, both are working in the Court at Idar and they were having good terms. As the opponent was in need of money, he approached the applicant for financial help. The applicant advanced a sum of Rs. 40,000/- to the opponent on 11.7.2006. The said sum was obtained by the applicant from his father who is a retired teacher. It is stated that the opponent executed a promissory note for the sum of Rs. 40,000/- on 11.7.2006 and agreed to repay the aforesaid sum of Rs.40,000/- as and when required by the applicant. Thereafter, as the opponent was in need of further money, the applicant advanced further sum of Rs. 80,000/- to the opponent on 16.8.2006. The opponent executed a promissory note for the said sum of Rs. 80,000/- on the said date and agreed to repay the said amount as and when required by the applicant. Thus, applicant, in all, advanced total sum of Rs. 1,20,000/- to the opponent. Promissory notes dated 11.7.06 and 11.8.06 are also produced along with memo of Civil Revision Application. The applicant made several entreaties to the opponent to return the amount, but the same were not heeded. The applicant, therefore, gave a notice to the opponent on 14.3.2009 through his lawyer, however, the same was returned with an endorsement that the opponent refused to receive the said notice. Thus, opponent did not repay the loan amount to the applicant and, therefore, the applicant filed Summary Suit No. 19 of 2009 in the Court of Principal Civil Judge, Idar. The applicant also filed an affidavit in support of the plaint. Thereafter, the matter was transferred from the Court of Principal Civil Judge, Idar to the Court of Principal Civil Judge, Prantij and the suit was renumbered as Civil Suit No. 6 of 2009. The applicant filed Summons for Judgment in support of his case and the Principal Civil Judge, Prantij, by order dated 13.5.09 issued show cause notice to the opponent calling upon him to show cause as to why a decree should not be passed against him. The opponent filed written statement vide Exh.16 denying the averments made in the plaint. He also disputed the signatures in both the promissory notes as well as execution of promissory notes. He also contended that he had taken loan of Rs. 47,000/- from the brother of the applicant and the said sum was repaid by him to the brother of the applicant on 31.1.2008 and the brother of the applicant had also executed necessary agreement to that effect. Affidavit in rejoinder was also filed by the applicant.

(3.) Mr Jigar M. Patel, learned advocate for the applicant submitted that the opponent did not file any application seeking leave to defend as required under the provisions of Order 37 Rule 5 of the Code of Civil Procedure and instead, he directly filed written statement. Learned Principal Civil Judge has not passed any order below Summons for Judgment and has passed order dated 10.7.09 below Exh.13 whereby Summary suit instituted by the applicant was directed to be proceeded with as Regular Civil Suit. It is submitted that the order dated 10.7.09 passed by the learned Principal Civil Judge below Exh.13 is contrary to the facts on record of the case as well as contrary to provisions of Order 37 of the Code. Learned Judge has completely misread the provisions of Order 37 of the Code. It is submitted that the learned Judge has committed jurisdictional error in taking in to consideration the written statement filed by the opponent and construing the same to be one seeking leave to defend the suit as required by Order 37 Rule 5 of the Code. Learned Judge has not even specified the period within which the amount of Rs.40,000/- is to be paid by the opponent. Thus, procedure, as prescribed under Order 37 Rule 5 has been given a complete go bye by the learned Judge while passing order below Exh.13. Thus, it is submitted by the learned advocate for the applicant that the said order passed by the learned Judge suffers from the infirmity and deserves to be set aside in so far as it is adverse to the applicant and prayer is made to pass decree as prayed for by applicant in Regular Civil Suit No. 6 of 2009 and further direction is sought for, in the alternative, to hear the Summons for Judgment and decide the same afresh in accordance with the provisions of Order 37 of CPC. Learned advocate has placed reliance on the judgment rendered in the case of Jitendra Gupta v. Ramchandra Sardare, reported in 1991 [1] G.L.H. 590, in support of the submissions canvassed at the bar. 3. Though the opponent is served, none appears for him.