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2002 DIGILAW 978 (PNJ)

Ashok Kapur v. Pawan Kumar

2002-09-25

JAWAHAR LAL GUPTA

body2002
Judgment Jawahar Lal Gupta, J. 1. Pawan Kumar, the plaintiff-respondent, filed a suit for the recovery of Rs. 14 lacs. This suit was filed under Order 37 of the Code of Civil Procedure, Vide order dated July 15, 1992, the defendants were restrained from disposing of the Panch Rattan Hotel. The notice was directed to be issued for July 23, 1992. On that day, the Court noticed that the respondents had not been served. A direction for issue of a fresh notice for July 31, 1992 was given. The interim injunction was continued. On August 12, 1992, defendant Nos. 3 and 4 namely M/s. Subhash Kapur and Deepak Kapur put in appearance and sought time to file the written statement. The case was adjourned to September 21, 1992. On September 19, 1992, the trial Judge noticed that he will be on leave on September 21, 1992. Thus, he directed that the case be posted on October 29, 1992. The interim injunction was extended. On October 29, 1992, written statement on behalf of the defendants was filed. The Court also noticed that "it has transpired that previously the summons of this case were served in the ordinary manner, whereas the counsel for the plaintiff states that the suit is under Order 37 C.P.C. and the summons as prescribed under Order 37 C.P.C. has been served upon the defendants". On behalf of the defendants, it was pleaded that the suit should be treated as an ordinary one. The Court adjourned the matter to November 9, 1992. After a consideration of the matter, the Court accepted the plaintiff-respondents plea vide order dated November 20, 1992. Hence, this revision petition by defendant Nos. 2 to 4. The other two defendants have been impleaded as proforma-respondents. 2. Mr. Akshay Bhan, learned counsel for the petitioners contends that the summons having been issued in the ordinary process, the provisions of Order 37 Rule 2 were violated. Still further, after the receipt of the summons, the petitioners had filed the written statement on October 29, 1992. Thus, the plaintiff-respondents had waived his right for the suit being tried summarily, Relying on the decision of a Full Bench of this Court in Prem Sagar and Ors. v. Phul Chand and Ors. (1983)85 P.L.R. 797, the learned counsel contends that the respondents should be deemed to have waived their right for a summary trial of the suit. Thus, the plaintiff-respondents had waived his right for the suit being tried summarily, Relying on the decision of a Full Bench of this Court in Prem Sagar and Ors. v. Phul Chand and Ors. (1983)85 P.L.R. 797, the learned counsel contends that the respondents should be deemed to have waived their right for a summary trial of the suit. It should now be tried as an ordinary suit. 3. The plaintiff-respondent has appeared personally and pointed out that the summons had initially been issued in an ordinary way. However, when this mistake was noticed by him, fresh summons in the prescribed form were issued by the Court on October 8, 1992. These were served on October 22, 1992. Petitioner No. 3 was served on October 15, 1992. Thus, there was compliance with the provisions of Order 37 Rule 2 of the C.P.C. There was no waiver by the plaintiff. The order of the trial Court should thus, be sustained. 4. On January 24, 2002, the original record was sent for. It has been received. 5. A perusal of the file shows that the plaintiff-respondent had filed the suit under Order 37. It was placed before the Senior Subordinate Judge, Chandigarh on July 15, 1992. The interim injunction was granted and the file was entrusted to Mr. Inderjeet Kaushik, Subordinate Judge 1st Class. Still further, it is undoubtedly true that the Court official had initially issued the process for service on the defendant-petitioners in an ordinary way. However, it is clear that the summons as contemplated under Order 37 Rule 2 were actually issued on October 8, 1992. These were served on the petitioners before they filed the written statement. 6. The trial Court in its order has observed that the plaintiff should not suffer for the default of the Court official or the counsel. Thus, it has sustained the plea of the plaintiff-respondent and held that "... the lapse on the part of the counsel for the plaintiff or the mistake of the Ahlmad of the Court or the error by the Court in fixing the case for written statement in no way gives the right to the defendants to say that the suit should be treated as ordinary suit. the lapse on the part of the counsel for the plaintiff or the mistake of the Ahlmad of the Court or the error by the Court in fixing the case for written statement in no way gives the right to the defendants to say that the suit should be treated as ordinary suit. The plaintiff has made the compliance by serving the defendants under Order 37 C.P.C. as laid down in 1990, Delhi Law Times 343, once the substantial compliance is made, the suit is to be treated under Order 37 C.P.C. 7. From a perusal of this order, it is not clear as to whether or not the factum of the defendants having been served specifically in the prescribed form had been brought to the notice of the Court. However, the original record clearly shows that the petitioners had been duly served in accordance with Order 37 Rule 2. This being the factual position, the very basis on which the order is sought to be challenged, ceases to exists. In fact, it appears that even in the Grounds of Revision as filed by the petitioners, the factum of the notice under Order 37 Rule 2 having been served on them, has not been disclosed. 8. Mr. Bhan contents that the written statement having been filed, the plaintiff should be deemed to have waived his right for a summary trial. The contention is misconceived. It is not the case of the petitioners that the suit does not conform to the requirement of Order 37 Rule 1. Once the claim falls within the ambit of Order 37 Rule 1, the plaintiff-respondent had a right to the summary trial of his claim. It was sought to be defeated on the plea that there was failure to comply with the provisions of Rule 2. Factually, it is not so. Thus, the question of waiver cannot arise. 9. Mr. Bhan placed reliance on the observations of there Lordships of the Full Bench of this Court in Prem Sagar s case (supra). The Bench was considering the factum of failure of a party to pay costs on the date fixed therefor. Factually, it is not so. Thus, the question of waiver cannot arise. 9. Mr. Bhan placed reliance on the observations of there Lordships of the Full Bench of this Court in Prem Sagar s case (supra). The Bench was considering the factum of failure of a party to pay costs on the date fixed therefor. While examining this issue, it was inter alia held that "if on the crucial date fixed for the payment of costs, the question is not raised at all, then impliedly a waiver of the right arising in favour of the party entitled to costs would necessarily follow. Therefore, on all subsequent dates, it would not be open to the parties to re-open the issue at there whims and seek barring of further prosecution of suit or the defence under Section 35-B. The rule as enunciated by Third Lordships has no application to the factual position in the present case. It is true that the law is for the vigilant. Those who sleep seldom receive the aid of law. However, in the present case, it cannot be said that the plaintiff had slept over his rights. In fact, he had, on noticing the default on the part of the court official, got fresh process issued in accordance with the provisions of Rule 2. The petitioners were duly served. 10. In this situation, it cannot be said that there was any waiver. 11. It may be mentioned that procedure of law is to promote justice and not to defeat it. Order 37 has been promulgated by the Legislature with the object of avoiding delays and abridging the procedure. Despite the laudable object behind the provision, ponderous procedures in Court have clearly defeated the object of the statute. The suit had been filed in the year 1992. The revision petition was also filed in the same year. It has remained pending in this Court for 10 years and the proceedings have remained stayed. Be that as it may, the fact remains that the purpose of Order 37 was defeated by the filing of the revision. That too, without disclosing to the Court that the summons as contemplated under Rule 2 had been duly served in October, 1992 before filing the written statement. In fact, it was stated that the summons were issued under Order 37 after "passing of the impugned order ... That too, without disclosing to the Court that the summons as contemplated under Rule 2 had been duly served in October, 1992 before filing the written statement. In fact, it was stated that the summons were issued under Order 37 after "passing of the impugned order ... which were received by the petitioner on 28.11.1992." Clearly, there was no mention of the service of the notice prior to the filing of the written statement. 12. Mr. Bhan contends that the plaintiffs had waived his right because an objection was raised by him regarding the summons having not been issued in conformity with the provisions of Rule 2, on various dates prior to September 19, 1992. There was no compliance with the provisions of Rule 2. The contention is misconceived. The plaintiff-respondent was not to blame for the default of the court official. In any event, the defendant-petitioners suffered no loss. It only delayed the trial of the suit. The petitioners interest was not prejudiced in any way. They were duly served with the notice as contemplated under Order 37. 13. No other point has been raised. In view of the above, the revision petition is dismissed. The case is remitted to the trial Court. The parties through their counsel are directed to appear on October 22, 2002. The Registry shall forward record to the trial Court forthwith. 14. In the circumstances, the parties are left to bear their own costs.