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2005 DIGILAW 955 (BOM)

Ruchita Sanghi v. D. Atchuta Reddy

2005-08-01

L.NARASIMHA REDDY

body2005
JUDGMENT : - The petitioners filed O. S. No.2722 of 2004 in the Court of the learned V Senior Civil Judge, City Civil Court, Hyderabad, against the respondent for recovery of certain amount. They invoked the procedure under Order 37, CPC. On receipt of summons, the respondent herein entered appearance within the stipulated time. Thereupon, the petitioners took out ‘summons for judgment’ as required under Rule 3 of that Order. In response, the respondent filed IA No.1785 of 2004 seeking permission to defend the suit. Through its order, dated 12 - 10 - 2004, the trial Court allowed the IA. Hence, the Civil Revision Petition. 2. Sri Vedula Srini vas, learned counsel for the petitioners submits that the order under revision does not disclose any reasons as to whether the Court was satisfied that there exists a triable issue and that in the absence of the same, permission ought not to have been granted to the respondent. He further contends that no opportunity, as such, was given to the petitioners to file any counter to the IA and that the very purpose of invoking the summary procedure was defeated. 3. Though notice was served on the respondent, he has not chosen to enter appearance. 4. Order 37, CPC prescribes a summary procedure in relation to certain selected category of suits. Wherever such procedure is invoked, few steps are prescribed, which are material and important. At the outset, the defendant, who receives the summons, has to enter appearance within the stipulated time. Failure, in this regard, would entail in the decreeing of the suit itself under Rule 2. Where the defendant enters appearance, the plaintiff would be under obligation to take out 'summons for judgment' under Rule 3 thereof. The purport of this Rule is that the defendant would be put on notice that the suit deserves to be decreed and that he has no defence to offer. The defendant, in turn, is left with an option to file an affidavit disclosing the facts that are sufficient to entitle him to defend, notwithstanding the invocation of the procedure under Order 37, CPC. It is here that the Court has to apply its mind and give a finding as to whether there exists a triable issue. In case, the finding is in the negative, the suit has to be decreed. It is here that the Court has to apply its mind and give a finding as to whether there exists a triable issue. In case, the finding is in the negative, the suit has to be decreed. On the other hand, if the finding is that such a triable issue exists, the defendant gets an opportunity to file written statement and to defend the suit. The recording of finding as to existence of triable issue can be said to be the backbone of the entire procedure under Order 37 C.P.C. 5. In the instant case, the respondent entered appearance within the stipulated time after receiving the summons. Thereafter, the petitioner served the 'summons for judgment' under Rule 3 of Order 37, CPC. The respondent, in turn, filed an application obviously pleading that there exists a triable issue in the suit. The trial Court was under obligation to record a finding either way. It is on the basis of this finding, that the fate of the suit ought to have been decided vis - a - vis the application of Order 37, CPC. The order under revision reads as under: "Both not present. Counter not filed. Hence perused the petition. In view of the Ruling of Hon'ble High Court in 2002(3) Andh L T 435 : (2002 AIHC 2617) this petition shall be allowed on condition the petitioner files written statement and pays costs of Rs.500/ - by 11 - 11 - 2004 without fail." If both the parties were not present, the trial Court ought to have either adjourned the matter or dismissed the suit for default. However, it proceeded to accord permission to the respondent to file written statement. This could have been done only after recording a finding that there exists a triable issue. Reference was also made to the judgment of this Court in M.V. Prasad Vs. Sri Durga Engineers, 2002(3) Andh LT 435: (2002 AIHC 2617). A perusal of the same does not disclose that any principle applicable to the facts of the case, is contained in it. Therefore, the order under revision cannot be sustained - in - law. 6. Hence, the civil Revision Petition is allowed and the order under revision is set aside. However, the trial Court is directed to hear the application filed by the respondent afresh and pass orders in accordance with law. There shall be no order as to costs. Therefore, the order under revision cannot be sustained - in - law. 6. Hence, the civil Revision Petition is allowed and the order under revision is set aside. However, the trial Court is directed to hear the application filed by the respondent afresh and pass orders in accordance with law. There shall be no order as to costs. Petition allowed.c