N.P.Gupta,J. - (1.) This second appeal has been filed by the defendant against the judgments and decrees of the learned courts below decreeing the respondent's suit filed under Order 37 C.P.C. passing a decree for a sum of Rs. 6,000/- along with costs.
(2.) The substantial question of law involved in the appeal is as under :- Whether even without issuing any summons for judgment under Order 37 Rule 3 C.P.C. the suit can be decreed simply because the defendant had entered appearance in response to summons for appearance issued under Order 37 Rule 2 and under a misconceived notion happened to request the learned trial court to be granted leave to defend and the learned trial court happened to grant leave on the condition of the deposit of the entire suit amount in the court which amount the defendant failed or omitted to deposit?
(3.) Brief facts of the case are that on 14.12.93 a suit was filed by the plaintiff respondent alleging inter alia that the plaintiff is a tenant of a premises of the defendant and in the backdrop of that relationship defendant borrowed a sum of Rs. 6,000/- from the plaintiff on 14.1.1991 for his domestic purposes with a promise to return them shortly. It is also alleged that looking to the relations no interest was stipulated. It was then alleged that thereafter no payments were made whether for principal or interest and the defendant went to Assam where from he has not returned and since the limitation for suit is expiring the suit is being filed or. the basis of promissory note. Interest by way of damages was claimed @ 2% per month. This suit was purportedly filed under Order 37 C.P.C. On filing the suit, vide order dated 8.12.1993 summons were ordered to be issued. On receipt of summons, the defendant on 7.1.1994 entered appearance and requested for being given opportunity to submit defence. Thereafter on 15.7.1994 the defendant filed yet another application to the effect that after the defendant entering appearance on 7.1.1994, the plaintiff has not taken any proceedings in accordance with Order 37 Rule 3 C.P.C., and therefore, the defendant should be allowed to produce written statement and the suit be ordered to be treated to be not one of summary nature. As the record shows that after defendant entering appearance the case was transferred and the learned transferee court on 28.5.1994 drew an order sheet to the effect that learned counsel for the defendant wants time to file written statement and to argue the application, therefore the file was ordered to be put up on 15.7.1994 for filing of written statement and arguments on the application. Thereafter on 15.7.1994, the case was fixed on 22.7.1994 for arguments on the application dt. 15.7.1994. It was also recorded that the counsel for the plaintiff has filed summons for judgment in summary suit so also affidavit which may be tagged with file On 22.7.1994 again the case was adjourned as the learned Presiding Officer was on leave. Then on 1.8.1994 summons were ordered to be issued to the defendant (obviously summons for judgment) and the case was fixed on 6.10.1994. On 6.10.1994 again the case was adjourned for arguments on the application dated 15.7.1994. Then on 25.10.1994 the learned counsel for defendant did not press the application dated 15.7.1994, and therefore, summons under Order 37 Rule 3 C.P.C. were ordered to be issued to the defendant in accordance with law. The fact remains that even thereafter, on 25.11.1994,17.12.1994, 22.2.1995, 21.4.1995, 25.8.1995, 2.11.1995, 15.12.1995, 22.2.1996 and 18.5.1996 it was noticed that summons under Order 37 Rule 3 C.P.C. have not been issued and they be issued and the case was fixed on 16.7.1996. Unfortunately on this date even without issuance of summons for judgment under Order 37 Rule 3 the defendant without mentioning any provision of law and even without mentioning anything about issuance or non-issuance for summons of judgment moved an application praying for being given leave to defend, and therefore, the case was fixed on 16.8.1996 for reply and arguments on this application. Thereafter the case was transferred to the Court of Additional Civil Judge (Sr. Division) where on 1.10.1996 the plaintff gave out to be not desirous to file reply and the case, was fixed for arguments on the application on 27.11.1996. Then on 21.1.1997 the arguments were heard and vide order dated 29.1.1997 the leave was granted subject to the condition of the appellant depositing suit amount Rs. 6,000/- within two months. Thereafter the appellant could not deposit the amount and applied for extension of time. However, ultimately he could not deposit the amount. Therefore, vide judgment dated 21.5.1997 the suit was decreed solely on the ground that the appellant did not deposit the amount despite specific direction that in the event of non-deposit the suit would be decreed under Order 37 Rule 3 C.P.C;