FIRM OF AMRATLAL RAVJIBHAI Vs. FIRM OF PARI PARSHOTTAMDAS HARIVALLABHADAS
LAWS(GJH)-1963-4-10
HIGH COURT OF GUJARAT
Decided on April 30,1963

FIRM OF AMRATLAL RAVJIBHAI Appellant
VERSUS
FIRM OF PARI PARSHOTTAMDAS HARIVALLABHADAS Respondents

JUDGEMENT

Bhagwati, J. - (1.) This appeal raises an interesting question of law relating to the interpretation of certain rules relating to summary suits in the Ahmedabad City Civil Court Rules, 1961, made by the High Court in exercise of its powers under Article 227 of the Constitution and Section 122 of the Code of Civil Procedure. The facts giving rise to the appeal may be briefly stated as follows: On 24th November 1962, the appellants filed Summary Suit No. 1317 of 1962 in the City Civil Court, Ahmedabad, claiming to recover from the respondents a sum of Rs. 1,02,600/together with interest and costs. The suit was filed as a summary suit under the procedure prescribed for summary suits by the Ahmedabad City Civil Court Rules. Two advocates were engaged by the appellants right from the date of the institution o the suit. The summons was served on the respondents on the same day on which the suit was instituted and on 3rd December 1962 the respondents filed their appearance and gave notice of the appearance to the appellants' advocates. Within ten days of the tiling of the appearance the appellants took out a summons" for judgment on 8th December 1962. By the summons for judgment the appellants prayed for a decree for Rs; 1,02,600/- with interest and costs. The summons for judgment came up for hearing before the City Civil Court on 20th December 1962 when an application was made on behalf of the respondents to adjourn the hearing of the summons for judgment. The hearing of the summons for judgment was accordingly adjourned for ten days. The summons for judgment thereafter came up for hearing on 10th January 1963. On that day no affidavit in reply was filed on behalf of the respondents nor was any application made on behalf of the respondents for leave to defend the suit. The only application made on behalf of the respondents was that time should be granted to the respondents for payment of the decretal amount. The learned Judge hearing the summons for judgment thereupon passed a decree on the same day i.e., 10th January 1963 for Rs. 1,02,600/- together with interest on Rs. 1,00,000/ - at the rate of four per cent per annum from the date of suit till payment and costs of the suit and directed that the decree shall not be executable upto 10th May 1963. The learned Judge allowed refund of 2/3rds of the court-fees as provided by the relevant rules and determined the pleader's fees as 1/4th of the usual fees on the basis of a single advocate. The appellants were aggrieved by two provisions of the decree passed by the learned Judge, the first provision being that the decree shall not be executable upto 10th May 1963 and the other provision being that the pleader's fees shall be 1/4th of the usual fees on the basis of a single advocate. The appellants thereupon preferred the present appeal in this Court challenging the legality of the said two provisions made in the decree passed by the learned Judge.
(2.) Mr. B. J. Bhatt, learned advocate appearing on behalf of the appellants, contended that under the Rules relating to summary suits in the Ahmedabad City Civil Court Rules, the respondents could not be heard at all by the learned Judge in answer to the summary suit unless the respondents asked for and obtained leave to defend the suit and since in the present case no leave to defend the suit was asked for and obtained by the respondents, the respondents were not entitled to apply to the learned Judge for time in regard to the payment of the decretal amount nor was the learned Judge entitled to grant time to the respondents on such application. The contention of Mr. B. J. Bhatt was that since leave to defend the suit was not asked for and obtained by the respondents, a decree as prayed for in the summons for judgment was bound to go against the respondents and there was no power in the learned Judge to grant tune to the respondent to make payment of the decretal amount and that the learned Judge was, therefore, in error in directing that the decree shall not be executable upto 10th May 1963. Mr. P. V. Nanavati, learned advocate appearing on behalf of the respondents, on the other hand contended that the only result of the respondents not having asked for and obtained leave to defend the suit was that the respondents were precluded from defending the suit but the right of the respondents to apply to the learned Judge at the time of passing the decree to grant time for payment of the decretal amount under Order XX, Rule 11, Sub-rule (i) of the Code of Civil Procedure was not taken away by anything contained in the rules relating to summary suits in the Ahmedabad City Civil Court Rules nor was the power of the Court under Order XX, Rule it, Sub-rule (1) affected in any manner whatsoever by any provision contained in those Rules. These rival contentions raise an important question of law relating to the procedure in summary suits and we find that there is no direct authority either of the High Court of Bombay or of this Court on that question.
(3.) Before we examine the validity of these rival views which were canvassed before us, it will be convenient to set out the relevant rules in the Ahmedabad City Civil Court Rules bearing upon the present controversy. The relevant rules are Rules 142, 143 and 144 which are in the following terms: "142. Institution of summary suits upon bills of exchange, etc. (1) All suits upon bills of exchange, hundis or promissory notes and all suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest, arising on contract express or implied, or an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty, or on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only may in case the plaintiff desires to proceed hereunder, be instituted as a 'Summary Suit' and which shall contain an averment that the plaintiff is suing under the Summary Procedure under Order XXXVII of the Code of Civil Procedure. (2) The writ of summons in a suit instituted under Sub-rule 1 above shall be in form No. 5. The plaintiff shall together with the writ of summons serve on the defendant a copy of the plaint and exhibits thereto and the defendant may at any time within ten days of such service enter an appearance. The defendant may enter an appearance either in person or by an advocate. In either case an address for service shall be given in the memorandum of appearance, and, unless otherwise ordered, all summons notices, or other judicial process required to be served on the defendant shall be deemed to have been duly served on him if left at his address for service. On the day of entering appearance, notice of the appearance shall be given to the plaintiff's advocate (or if the plaintiff sues in person to the plaintiff himself) either by notice delivered at, or sent by prepaid letter directed to, the address of the plaintiff's advocate or of the plaintiff, as the case may be. (3) In any suit under this Rule the defendant shall not defend the suit unless he enters an appearance and obtains leave from a Judge as hereinafter provided so as to defend; and in default of his entering an appearance and of his obtaining such leave to defend, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified (if any) to the date of the decree, and such sum, for costs as may be prescribed unless the plaintiff claims more than such fixed sum in which case the costs shall be ascertained in the ordinary way, and such decree may be executed forthwith. 143. (1) Appearance of defendant:-- In a suit filed under Order 37 of the Code of Civil Procedure if the defendant enters an appearance, or files a Vakalatnama, the plaintiff shall on affidavit made by himself, or by any other person who can swear to the facts of his own personal knowledge verifying the cause of action, and the amount claimed, and stating that in his belief there is no defence to the action, apply by summons for judgment returnable not less than ten clear days from the date of service to the Sitting Judge in Chambers for the amount claimed, together with interest (if any) and costs. The Judge may thereupon, unless the defendant by affidavit or declaration shall satisfy him that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, pass a decree for the plaintiff accordingly. (2) Interlocutory proceedings:-- On the summons for judgment all such directions may be given and orders made for the conduct of the suit as may appear necessary to the Judge hearing the same. (3) Default in filing appearance:-- If the defendant does not enter an appearance or file a Vakalatnama within ten days of the service upon him of the writ of summons and the plaint and exhibits thereto, the plaintiff shall be at liberty to apply to put the suit down for hearing forthwith thereafter before the Sitting Judge in Chambers. In such application the plaintiff shall state the date when the defendant was served and also state the fact of the affidavit of service of the writ of summons having been filed. (4) When no decree applied for within a year: If the plaintiff does not apply for a decree within six months after the filing of the plaint, the suit shall be set down in the daily cause board for dismissal before the Sitting Judge in Chambers, one week before the day fixed for such dismissal. Upon the day fixed for such dismissal, the suit shall be called on before the Sitting Judge in Chambers and shall be dismissed if the plaintiff fails to appear, or appearing fails to satisfy the Judge that he has sufficient cause for not having proceeded with his suit. 144. Judgment for part of claim:-- If on the summons for judgment it appears that the defence set up by the defendant applies only to a part of the plaintiff's claim, or that any part of his claim is admitted, plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any as to suspending execution, or otherwise as the Judge may think fit." We may point out here that the rules in Order XXXVII of the Code of Civil Procedure which is the Order relating to procedure in summary suits prescribe a procedure which is a little different from the procedure prescribed by the rules in Ahmedabad City Civil Court Rules and this difference will have some significance when we consider a certain decision of the Bombay High Court which was cited before us and relied upon by Mr. B. J. Bhatt on behalf of the appellants.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.