N. D. VENKATESH, J. ( 1 ) THIS appeal is directed against the judgment and decree dated 25-10-1979 of the district Judge, Dakshina Kannada, Mangalore, in RA No. 18 of 1979 on his file. ( 2 ) THE facts involved may be stated briefly. The respondent herein filed a suit against the appellant for recovery of a sum of Rs. 10,175 04 p. in the Court of the principal Civil Judge, Mangalore (D. K.) in OS No. 37 of 1979. The suit was filed invoking the summary procedure as laid down under Or. XXXVII of the Code of civil Procedure (Code ). The plaintiff, which is a firm claims that in respect of a premises situated in the City of Mangalore the defendant is its monthly tenant, being liable to pay a monthly rent of Rs. 2,500, having taken the said premises on lease under a registered lease dead dated 23-11-76. The plaintiff's allegation in the suit was that the defendant had committed default in the payment of rents due for the months of October to December, 1978, and and January 1979 and therefore, he was liable to pay the said sum of Rs. 10,000 plus interest at 12% from the due dates, in all amounting to Rs. 10,175-04 ps. ( 3 ) THE defendant, who admittedly had not entered appearance and sought permission of the Court to defend the claim within the time stipulated in the relevant sub rules of R. 3 of Or. XXXVII, filed an application (IA I) in the Court below stating that Or. XXXVII was not attracted to the facts of the case ; that that special procedure could not have been invoked by the plaintiff; and that, in the circumstances, he was entitled to contest the suit as of right and without the constraints of Or. XXXVII and the relevant rules. The Civil judge held that the suit could be proceeded with under Or. XXXVII and further held that IA I, by which the defendant had sought for permission to enter appearance and defend the suit, was not maintainable and dismissed the said IA, and granted a decree in favour of the plaintiff as sought for. The learned District Judge has up- held the judgment and decree of the Civil judge. ( 4 ) TWO questions arise for consideration in this appeal, and they are : (I) Whether the provisions of Or. The learned District Judge has up- held the judgment and decree of the Civil judge. ( 4 ) TWO questions arise for consideration in this appeal, and they are : (I) Whether the provisions of Or. XXXVII do not apply to the suit in question ? and (ii) If it is held that that order is applicable to the suit, does IA I filed by the defendant requires reconsideration on merits ? ( 5 ) IN the trial Court the plaint was presented on 8 2 1979. It was registered as an original suit on 9 2 1979 and on that very day the Court ordered summons to the defendant returnable by 24-3-1979. Copy of the summons was served on the defendant on 14 2 1979, the server returning the original to the Court, with the acknowledgement of the defendant for having received the summons, with his (server's) own shara on it. The summons in original reads as follows : -"in the Court of the Civil Judge of mangalore. O. S. No. 37/79. Between : m/s. Sea View Tourist Home : plaintiff. And : harikrishna Punarur : Defendant. To : sri Harikrishna Punarur, s/o Vasudeva Rao, proprietor: Hotel Swagath, opp. State Bank of India, mangalore-1. Whereas the plaintiff has instituted a suit against you under Or. XXXVII of the cpc, 1908, for Rs. 10,175 04 and interest, you are hereby summoned to cause an appearance to be entered for you within ten days from the service hereof, in default whereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs. 10,175-04 and the sum of Rs. 1,169 for costs, together with such interest if any, as the Court may order. If you cause an appearance to be entered for you, the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit. Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend, given under my hand and the seal of the court, this 12th day of February, 1979. (Sd.) Advocate for By Order plaintiff. Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend, given under my hand and the seal of the court, this 12th day of February, 1979. (Sd.) Advocate for By Order plaintiff. Sd/- Sheristedar received copy plaint sd/- Sona Rao. 14-2-79. . . . . (Typed in Kannada ). . . . Sd/-K. Seena s. . . . . . . . . 24-2-79, R. 12. Sd/-Process Sheristedar. . 24-2-79. . . . . . . . ( 6 ) ON 27-3-1979 IA I, an application under S. 151 read with Or. XXXVII, R. 3 of the Code seeking permission of the court to file the written statement was filed by the defendant. In the affidavit filed along with the application the defendant stated that the plaintiff himself has committed default in performing certain terms of the lease-deed ; that, therefore, he had filed a suit in OS No. 101/79 in the Court of the Munsiff, Mangalore, claiming specific performance and for other reliefs ; that the plaintiff had also filed another suit against him in OS No. 11/79 seeking an injunction restraining him from having the kitchen at the rear room of the premises ; that in the present suit the plaintiff had invoked Or. XXXVII, but by sheer oversight that he, the defendant, had not noticed that fact, was not aware of the implication and therefore could not appear within 10 days of service of notice ; and that that delay was unintentional and bona fide. He has further stated that even otherwise the provisions of Or. XXXVII do not apply to the suit in question as the lease-deed was not a contract but a conveyance and that, therefore, he was entitled to contest the suit without the constraints of the said Rule. In the end he requested the Court that in the interest of justice it should permit him to file his written statement as otherwise he would be put to great loss and serious hardship. ( 7 ) OR. XXXVII and the relevant rules read as follows : -1. In the end he requested the Court that in the interest of justice it should permit him to file his written statement as otherwise he would be put to great loss and serious hardship. ( 7 ) OR. XXXVII and the relevant rules read as follows : -1. Courts and classes of suits to which the order is to apply- (1) This order shall apply to the following courts, namely; (a) High Courts, City Civil Courts and Courts of Small Causes, and (b) Other Courts; provided that in rtspect of the Courts referred to in clause (b), the High Court may, by notification in the Official gazette, restrict the operation of this order only to such"categories of suits as it deems proper and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or mary, the categories of suits to be brought under the operation of this order as it deems proper. (2) Subject to the provisions of sub-rule (I), the order applies to the following classes of suits, namely : - (a) suits upon bills of exchange, hun- dies and promissory notes; (b) 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,- (i) on a written contract; or (ii) on 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 (iii) on a guarantee, where the claim against the principal is in respect of. a debt or liquidated demand only. 2. institution of summary suits :- (1) 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 Or. XXXVII of the CPC, 1908 ). (2) 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. XXXVII of the CPC, 1908 ). (2) 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 enters 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 R. 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time, within 10 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 of 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 duty served on him if they are left at the address given by him for such service. (3) On the date 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) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4a in Appendix-B or such other form as may be prescribed from time to time, returnable not less than 10 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 cf 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 of 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 the 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 grunted 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 or in applying for leave to defend the suit". ( 8 ) THE plaintiff claims that his suit is covered by Or. XXXVII, R. (1), sub- rule (2) (b) (i ). ( 9 ) THE learned Counsel for the appellant-defendant contends that the suit, the claim in which relates to the recovery of alleged rental arrears payable under a concluded lease as alleged therein, is not covered by the said provision. XXXVII, R. (1), sub- rule (2) (b) (i ). ( 9 ) THE learned Counsel for the appellant-defendant contends that the suit, the claim in which relates to the recovery of alleged rental arrears payable under a concluded lease as alleged therein, is not covered by the said provision. According to him though rental arrears can be construed as a debt the same cannot be held to be debt, arising "on a written contract" as contemplated under sub rule (2) (b) (I) of R, 1 of Or, XXXVII. ( 10 ) AS stated above it is conceded that the rental arrears partakes the character of a debt. The question is, can that debt be taken as a debt arising on a written contract". ( 11 ) THE learned Counsel for the respondent argued that, while construing a provision of law like this, we should not take a hypertechnical view, and should construe the same keeping in view the intention of the legislature also. According to him a lease may not be a contract in the strict sense, but can be said to be the resull of a contract and retaining in it, as long as it lasts, the contractual rights and obligations which form part of the lease. In this sense, according to him, a lease which is the out come of a contract, can still be conitrued as a contract for certain purposes. The learned Counsel for the appellant, while disagreeing with this view, argued that, no doubt, a lease like the one referred to herein, might have been the result of a contract, but the moment that lease came into existence It ceased to be so i. e. , a contract. According to him, a lease is an alienation resulting in a transfer of an interest in an immoveable property. He argues that in a lease there is a merger of the contract. ( 12 ) THE learned Counsel for the appellant drew my attention to certain passages found in the Commentary below S. 105 in the Mulla's Transfer of Property Act 6tb edn. Counsel referred to the observation. (at page 655) that a lease therefore is not a mere contract, but is a transfer of an interest in land and creates a right in rem. This is no doubt true. Counsel referred to the observation. (at page 655) that a lease therefore is not a mere contract, but is a transfer of an interest in land and creates a right in rem. This is no doubt true. But, we should not miss the words "a mere contract" as found therein These words mean that a lease is not a "mere contract, but something more than that. Further, the learned counsel drew my attention to the observations made at page 661. Therein, in the last but one para below the heading Actual demise", it is stated that "when a document, though in form an agreement to lease, finally ascertains the terms of the lease and gives the lessees a right of exclusive possession either immediately or at a future date, the document is said to effect an actual demise and it operates as a lease". It is further observed that "whe ther it operates as a lease or as agreement to lease is a matter for construction and intention". 12 (a ). Agreements or contracts, as is well known, are either executory or concluded contracts. In the case of a lease, if that lease is the result of an agreement, the moment the agreement reaches finality it is called a lease. In other words, a concluded contract entered into by the parties, with that end in view, results in a lease or becomes a lease. The learned counsel for the appellant says that what remains then would be only the lease and not the contract and the contractual terms and obligations agreed upon preceding that lease ca'n be said to have been merged in the lease. But, according to me, that merger any, would be only in a limited sense. It does not wolly obliterate the terms and conditions of the lease. For example, a stipulation re: periodical payment of rent must be available for being enforced in case there were to be defaults in payments of rents. The consideration in the case of a completed contract like a lease is payment of rent. Failure to pay rent will give rise to a cause of action to the landlord to claim rent and that claim should be taken as having arisen, in a case like this, out of the stipulation made in the contract between the parties, and this is an obligation arising under the contract. Failure to pay rent will give rise to a cause of action to the landlord to claim rent and that claim should be taken as having arisen, in a case like this, out of the stipulation made in the contract between the parties, and this is an obligation arising under the contract. Unless there is that privity of contract the landlord cannot enforce that claim against the tenant. 12 (b ). In Mangal Sen v, Muhqmmed hussain (1) certain lands were under a sublease. The sub-lessees had undertaken with their lessor (the main tenant) to make payments to zamindars. Since the zamindars did not receive the rents from their tenants (the main tenants) they proceeded against the sub-lessees for recovery of the same. The Courts below had granted a decree as sought for by the zamindars. When the matter came up by way of an appeal before the learned single Judge of the Allahabad High Court the plea taken on behalf of the sub lessees was that there was no privity of contract between them and the plaintiffs ; that the haq-i zamindari in question is not a charge upon the land that there cannot be said to be a covenant running with the land, and that, therefore, the plaintiffs were not entitled to a decree as against the sub-lessees though they may have been entitled to one as against the main lessees. The learned single Judge was of the view that in the case o a contract the ordinary rule is thai a person who was no party to It, though entitled to a benefit under it, cannot enforce it, and dismissed the plaintiffs' suit allowing the appeal. In the Letters Patent appeal the division Bench, in the above case, held as follows :-"the only point to be decided is whether or not under the circumstances of the present case the plaintiffs were entitled to sue the defendants, the lessees. It is admitted that there was no privity of contract. It is also admifted that the respondent's liability (if any) is under the terms of their contract with their lessor, the muafidar. In our opinion the learned Judge of this Court was correct in the view he took". It is admitted that there was no privity of contract. It is also admifted that the respondent's liability (if any) is under the terms of their contract with their lessor, the muafidar. In our opinion the learned Judge of this Court was correct in the view he took". The authority is cited to emphasise the fact that the claim of the landlord to claim arrears of rent would arise, though apparently on the basis of the least, but in fact, by virtue of the contract between the lessor and the lessee. ( 13 ) TO attract Or. XXXVII, R, 1 (2) (b) (i) the claim should be for recovery of a debt arising on a written contract. The lease deed, in the instant case, is said to contain the terms and conditions of that concluded agreement between the parties. The word on as defined in the Chambers 20th Century Dictionary, also means "having for basis". Now the basis for the claim in a case like this is the condition stipulated in the written lease deed, which in turn, is the result of that concluded contract. In this view "a written contract" within the meaning of the aforesaid provision includes a written lease deed. ( 14 ) FOR the reasons aforesaid I am of the view that a claim for arrears of rent arising under a written lease is covered in clause (i) (b), sub-rule (2) of R. 1 of Or. XXXVII. Hence, the suit filed by the plaintiff under Or. XXXVII of CPC was maintainable. ( 15 ) UNDER R. 3 the defendant has to enter appearance within ten days of service of summons on him. Under sub-rule (5) of R. 3 he has to apply for leave to defend within the time stipulated therein. In the affidavit filed in support of IA I, the defendant states that the delay on his part in not appearing within ten days of service of summons may be condoned. The trial court does not appear to have noticed sub-rufe (7) of R, 3 which provides that "a Court or Judge may, for sufficient cause shown by the defendant excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit". The trial court does not appear to have noticed sub-rufe (7) of R, 3 which provides that "a Court or Judge may, for sufficient cause shown by the defendant excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit". The learned District Judge has not given sufficient attention to this aspect of the defendant's case, I am, therefore, of the view that IA I is required to be reheard by the trial Court. ( 16 ) ACCORDINGLY this appeal is allowed, the judgments and decrees of both the courts below are hereby set aside, the suit and IA I filed by the defendant in the trial court are remitted to that Court for fresh disposal according to law and in the light of the observations made above. No costs. --- *** --- .