Pushpendra Singh Bhati, J. - (1.) The petitioner by way of filing this petition is claiming the following reliefs :- "a) by an appropriate writ, order or direction, the impugned order dated 08.7.2014 (Annex.1) passed by the learned trial court in pending Civil Suit No.276/2012 (old no.275/2010), titled "Mahavir Chand Mehta Vs. Smt. Shobha Jain' pending trial before the court of learned Additional District Judge No.6, Metropolitan, Jodhpur may kindly be quashed and set aside, consequently, the trial court may kindly be directed to decide the suit in accordance to provisions of Order 37 Rule 2 & 3 CPC., by allowing application of the petitioner-plaintiff. b) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. c) Writ petition filed by the petitioner may kindly be allowed with costs."
(2.) The petitioner-plaintiff filed a summary suit under Order 37 Rule 2 CPC against the respondent-defendant and prayed for a decree of a sum of Rs.10,70,000/- in total with interest @ 10% per annum. Counsel for the petitioner pointed out that erroneously wrong notices for general proceedings were sent to respondent-defendant instead of sending notices for summary proceedings. Counsel for the petitioner argued that the petitionerplaintiff had sought decree as the respondent had not complied with the provisions of Order 37 Rule 3(4) & 3(5) of CPC. The learned trial court has ordered the suit proceedings by taking written statement produced by the respondent on record by the impugned order. Counsel for the petitioner has harped upon the fact that the rigors of Order 37 are in a very tight legislative language, therefore, the respondents could not have been permitted to file his written statement and the suit ought to have been decreed.
(3.) Counsel for the respondent pointed out that as per Appendix-B, the petitioner has filed summons at Sr. No.2, which are for general proceedings and the same were issued by learned court below and for no fault of respondent he cannot be put in tight rigors of Order 37. Counsel for the respondent pointed out that the technical process of Order 37 would come into existence only if Appendix-B Summon No.4 was issued to the respondents. To strengthen his argument, counsel for the respondent relied upon the judgment of Hon'ble Andhra Pradesh High Court in Vasudev Chenoy Vs. T. Jagan Mohan, 1981 LawSuit(AP) 237, relevant partition whereof reads as follows : "(5) These summons are plainly and wholly inappropriate to a suit filed under Order 37, civil Procedure Code. Order 37, rules 2 and 3 of Civil Procedure Code read thus :"2. Institution of summary suits.-A suit to which this order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain- (a) a specific averment to the effect that the suit is filed under this Order : (b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and (c) the following inscription, immediately below the number of the suit in the title of the suit, namely : " (Under Order 37 of the Code of Civil procedure, 1908 ). " (1) The summons of the suit shall be in form No. 4 in Appendix B or in such other form as may, from time to time, be prescribed. (3) The defendant shall not defend the suit referred to in sub-rule (1) unless he en ers an appearance and in default of his entering an appearance 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, up to the date of the decree and such sum for costs as may be determined by the High court from time to time by rules made in that behalf and such decree may be executed forthwith. 3. Procedure for the appearance of defendant.- (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service notices on him. (2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service. (3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff s pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff s pleader or of the plaintiff, as the case may be- (4) It the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in form No. 4-A in Appendix B or such other form as may be prescribed from time to time, 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. (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons 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 or judge to be just : provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by defendant is frivolous or vexatious. Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. (6) At the hearing of such summons for judgment.- (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith ; or (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith. (7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance of in applying for leave to defend the suit". Now Order 37, Civil Procedure Code, provides for a summary trial in a restricted class of cases. Under Order 37, sub-clause (2) the summons cannot be sent in Form 1 of Order 5, rule 1, which is the usual form applicable to all suits generally. In the special class of suits instituted under Order 37, Civil Procedure code, summons should be sent in form 4. Form 4 is in these words : (6) I must express my unhappiness at the fact that the learned Judge had thrown away the basic right of the defendant to defend himself in such casual way. The unusual procedure adopted by the plaintiff in the case should have alerted the Court to be on guard to see whether the plaintiff is not attempting to snatch away a decree without trial. In a matter like this whether the plaintiff was seeking the application of summary procedure denying the ordinary right of defence to the defendant the learned Judge ought to have been alert. Even technically, it is a mistake on the part of the leaned Judge in not issuing summons in Form No. 4. What is more, the learned judge having issued the usual summons in form No. 1 ought not to have decreed the suit under the summary procedure of Order 37. The learned Judge ought to have taken note of the fact that the defendant bona fide acted on the basis of the first set of summons which were served on the defendant and that they were not the summons which would justify the Court to apply the special and summary procedure of Order 37, Civil Procedure code. To say the least, this appears to me to be unfortunate. The serving of the second set of summons is of no avail to the plaintiff because by then the defendant received and acted upon the first summons. I have, therefore, no hesitation to set aside the decree under revision. (7) But Mr. Sarma argued that at least after the second set of summons had been served and vakalat was filed on 31st December, 1980 the defendant should have taken steps which are appropriate to defend this action under Order 37 of Civil Procedure Code. The obvious answer to this argument is that the vakalat was filed on 31st December, 1980 not in reply to the second set of summons served on 27th December, 1980, but in response to the first set of summons served in Form No. 1 on 20th December, 1980. It may be noted that the last date for appearance under the first set of summons was 19th January, 1981 and this was the reason why the defendant had sled his vakalat on 31st December, 1980. Subsequently when the case was called, the defendant attempted to defend the cause under the ordinary procedure provided by the civil Procedure Code for the trial of suits. The defendant cannot be blamed for not following the summary procedure at a later stage giving up the regular procedure adopted by him earlier. He is right and consistent in following the regular procedure on the basis of Form No. 1 summons. But the Court frustrated those attempts of the defendant by wrongly applying Order 37 of Civil Procedure code and wrongly denying the defendant s right under Form No. 1 summons. In doing so the Court is acting inconsistently. For the unchecked faults of the Court, parties have to pay under our system of Judicial administration. The argument of the learned counsel for the landlord that atleast after the defendant entered his appearance he should have followed the procedure, under Order 37 of Civil Procedure Code cannot, therefore, be accepted. (8) It is also argued for the landlord that this Court cannot and in any case, should not interfere with the decree of the lower court except as permitted by Order 37, rule 4, Civil Procedure Code. This argument is sought to be based on Order 37, rule 4 of civil Procedure Code, which reads as follows:"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". (9) However in my opinion this provision does not support the plaintiff s coatention. This provision of Civil Procedure Code gives the Court which passed the decree applying the summary procedure power to set aside that decree. But that provision of law does not and cannot operate at a limitation on the revisional powers of this Court. The decree in this case had been passed by the Court below following a ghastly procedure of open denial of opportunity to the defendant. The provisions of Order 37, rule 4 of Civil Procedure code empower the lower Court to set aside a decree obtained after summary procedure if the passing of the decree results in injustice. In a case like this where the Court itself misled the parties by its ignorance of law, and recklessness of procedure and passed a decree without affording an opportunity to the defendant for a minimum trial the lower court would be justified under Order 37, rule 4 of Civil Procedure Code, to set aside that decree. But Order 37, rule 4 has no relevance in considering the amplitude of the powers of this Court. This Court s revisional powers under section 115, Civil Procedure Code, are not subject to Order 37, Civil Procedure Code. Under section 115, Civil Procedure Code, this Court has power to set aside any order passed without jurisdiction and illegally. A money decree passed without any trial whatsoever cannot be too strongly condemned and cannot be too lightly allowed to operate even for a second. It is said by Mr. Sarma that the tenant has filed an application under order 37, rule 4, Civil Procedure Code, seeking the lower Court to set aside the decree. I do not think that this should make any difference to my duty under Articles 226 and 227 of the constitution to keep the lower Tribunals within their legal bounds. (10) It is also argued by the tenant s Counsel that the suit can never come under Order 37, civil Procedure Code, because the suit amount comprises of property tax alleged to be payable. It is, therefore, argued that the subject-matter of this suit cannot come under order 37. He relied upon the recitals in Clause (1) of the lease deed. In view of the fact that I am allowing this civil revision petition on the ground that proper procedure had not been followed and the defendant had been misled, I need not go into that question. (11) I must however warn the Subordinate courts to be cautious and careful in adopting the summary procedure of Order 37 which denies the unconditional right of defence to a defendant. Unless legally compelled the courts should not allow the litigants to resort to this constitutionally suspect procedure that substantially denies the small defendants the big safeguards under the provisions of our procedure Code. Where on the basis of the present law Order 37 is sought to be applied, the Courts must take special care to follow both the letter and spirit of that provision of civil Procedure Code. Courts not able to ensure procedural fairness will not be trusted to do anything good. (12) The civil revision petition is accordingly allowed with costs. A copy of this judgment will be sent to the learned Judge to keep it in her file. Civil revision petition allowed.";