Judgment Bhaskar Bhattacharya, CJ.—This First Appeal is at the instance of some of the defendants [defendants No. 3, 3A, 3C, and 3E] in a Summary Suit for recovery of money and is directed against the judgment and decree dated 10th May 2006 passed by the 7th Additional Senior Civil Judge, Ahmedabad [Rural], in Special Summary Suit No. 11 of 2003, thereby directing the appellants before us, who were some of the defendants, to make payment of Rs. 48,51,932-90 to the plaintiffs with interest at the rate of 12% per annum from the date of filing of the suit till the amount is recovered. The defendants No. 1 to 3 were further restrained from transferring or getting transferred the property referred to by the plaintiffs in Schedule I in favour of any person either personally or through their representatives, heirs, guardians, successors or present or future trustees or their agents, assignees, till the disposal of the suit, although the suit had been disposed of by the decree itself. 2. Being dissatisfied, some of the defendants have come up with the present First Appeal. 3. It appears from the record that the plaintiffs filed against some persons including the present appellants a summary suit contemplated under Order 37 Rule 1 of the Code of Civil Procedure thereby praying for recovery from the defendants a sum of Rs. 48,51,932-90 with interest at the rate of 15% per annum from the date of filing of the suit till recovery. 4. The case made out by the plaintiffs in the suit may be summed up thus: 4.1 The plaintiffs filed the suit for recovery of the dues of the plaintiffs for breach of agreement committed by the defendants with regard to the property in possession and occupation of the plaintiffs situated at Mouje Vastrapur, in the city of Ahmedabad, more particularly described in Schedule II of the Lease Agreement which was executed by the defendants on 1st January 2001. 4.2 The defendants had executed the agreement in terms of Schedule-I thereof, in the capacity of Trustees of the Trust as well as in their individual capacity. As the defendants, according to the plaintiffs, had not made payment of the amount by not complying with the said agreement, they were constrained to file the suit. 4.3 According to the agreement, the defendants were bound to make payment of Rs. As the defendants, according to the plaintiffs, had not made payment of the amount by not complying with the said agreement, they were constrained to file the suit. 4.3 According to the agreement, the defendants were bound to make payment of Rs. 3,31,250/- on the first date of every month from 1st January 2001 to 30th November 2003 with regard to the property referred to in Schedule-II. The defendants were liable to make such payment in accordance with the agreement up to 30th November 2003. Further, in case the defendants were desirous of using the suit property after 30th November 2003, they were required to act in accordance with the agreement. However, the defendants were to make payment of the agreement amount up to 30th November 2003 in terms of condition No. 2 of the agreement and they were bound to make use of the property as provided in the agreement. 4.4 The defendants issued one notice upon the plaintiffs and a letter was received by the plaintiff on 7th January 2003 intimating the plaintiffs that the said agreement stood terminated on 31st December 2002 and that the possession was handed over. Thus, according to the agreement, the defendants were liable to make payment of Rs. 36,43,750/- for eleven months. 4.5 According to the agreement, in case of termination of the agreement, the defendants were liable to give 12 months’ notice for the same. However, the defendants herein had given only 8 months’ notice, and in such circumstances, in terms of the agreement, they were further liable to make payment of Rs. 13,25,000/- to the plaintiffs. The defendants were liable to make payment of this amount at the rate of Rs. 3,31,250/- a month for giving notice of only 8 months instead of 12 months. 4.6 According to the agreement, the defendants were bound to make payment of taxes as may be chargeable by the Government, AUDA and Panchayat etc., with regard to the premises in question. Since the plaintiffs had not received the bills with regard to the premises from these authorities, the plaintiffs, in their notice, had also asked the defendants to make deposit of an amount of Rs. 22,00,000/- against the total lease amount of Rs. 64,45,000/-. Since the plaintiffs had not received the bills with regard to the premises from these authorities, the plaintiffs, in their notice, had also asked the defendants to make deposit of an amount of Rs. 22,00,000/- against the total lease amount of Rs. 64,45,000/-. The plaintiffs had not included in the suit the said payments to be made but in future, if the question arises for making payments in this regard, the plaintiff reserved their right to amend the suit and to seek the amounts to be paid towards the government taxes. 4.7 Over and above this, the details of the amounts to be paid by the defendants which have not been paid by the defendants with regard to the property as per the agreement are as under: “[a]. The defendants herein have used the property referred to in Schedule-B of the suit as per the agreement, and on all the four side walls on the ground floor, first floor, second floor and third floor, small and big pits had developed and towards expenses for plaster and re-plaster for removing the same, the defendants are bound to make payment of Rs. 2,50,000/- to the plaintiffs. [b]. The defendants are liable to make payment of Rs. 2,50,000/- to the plaintiffs towards the expenses of firstly making white wash and thereafter for necessary colour expenses in the suit property which has been used by the defendants herein. [c]. The defendants are liable to make payment of expenses of Rs. 48,000/- to the plaintiffs towards the repairing expenses of doors, windows, bathroom, fans, tube lights, as well as the glasses of windows, as per the agreement. [d]. The defendants are liable to make payment of expenses of Rs. 10,500/- to the plaintiffs towards the cleaning and washing the entire property with water, as per the agreement. (e). At the time when the plaintiffs allowed usage of the property referred in the suit, the Bore was given in working condition, however, when the property was handed over back by the defendants, the said Bore for water was and is not in a working condition. Therefore, towards the expenses of new bore connection expenses of Rs. 3,25,000/- after deducting the amount of Rs. 9,600/- towards about 32 steel pipes of said Bore, as well as Rs. 15,000/- for KSB Pump set, the defendants are liable to make payment of expenses of Rs. 3,00,400/- to the plaintiffs. Therefore, towards the expenses of new bore connection expenses of Rs. 3,25,000/- after deducting the amount of Rs. 9,600/- towards about 32 steel pipes of said Bore, as well as Rs. 15,000/- for KSB Pump set, the defendants are liable to make payment of expenses of Rs. 3,00,400/- to the plaintiffs. (f). The defendants herein are bound to make payment of Rs. 40,000/- towards the expenses of sewage and drainage with regard to the said property as per the agreement. These amount is also to be paid to the AUDA towards sewage and drainage charges, which has not been paid, however, as and when the same are required to be paid, the plaintiffs are entitled to recover the same from defendants. [g]. The defendants herein are legally bound to make payment of total of Rs. 4,282-90 ps. comprising the amount of Rs. 3,367.20 towards electric burning bill from 2.12.02 to 31.12.02 plus Rs. 915-70 ps. debited from the deposit in their account to the plaintiffs. [h]. As per the agreement as well as legally, the defendants herein are liable to make payment of Rs. 5,000/- to the plaintiffs towards the notice expenses as notice was required to be issued on 21.12.2005 for breach of agreement committed by them.” 4.8 Thus, the defendants, in terms of their notice for termination of the agreement, vide their letter dated 31st December 2002, have handed over to the plaintiffs the possession of the property and the possession and occupation of the premises in question was given on 1st January 2003 at 6.15 PM, and the same has been accepted by the plaintiffs, and even by the said letter also, it has been agreed to make payment of the amounts referred to in paragraph 13 of the plaint. 4.9 The plaintiffs had issued one legal notice to the defendants with regard to the averments stated in the plaint and with regard to the breach of the contract, which was received by the defendants on 22nd January 2003. According to the notice, the plaintiffs were entitled to the recovery of an amount of Rs. 58,51,932-90 by way of the outstanding dues and after giving set-off of Rs. 10,00,000/- which was given earlier as a deposit, the plaintiffs have filed the present suit for recovery of the amount of Rs. 48,51,932-90 with running interest at the rate of 15% per annum. 58,51,932-90 by way of the outstanding dues and after giving set-off of Rs. 10,00,000/- which was given earlier as a deposit, the plaintiffs have filed the present suit for recovery of the amount of Rs. 48,51,932-90 with running interest at the rate of 15% per annum. The details of the amount payable by the defendants are quoted below: “(A). The outstanding amount which the defendants were bound to make payment of on the 1st day of every month on account of termination of agreement before completion of the agreement of eleven months, as per Para-5 of the suit. Rs. 3,31,250/- per month X 11 months = Rs. 36,43,750-00 (B). Twelve month specific notice was required to be issued before vacating the said premises as per the agreement but instead as eight month notice has been given, amount towards notice period which is less by four months. 4 months X Rs. 3,31,250-00 = Rs. 13,25,000/-. (C). As per the agreement and notice, the defendants herein are bound to make payment of the amounts towards the following items with regard to the aforesaid property used prior to the handing over possession as per the documents for the same. Plaster expenses Rs. 2,50,000-00 Colour work expenses Rs. 2,25,000-00 Repairing expenses Rs. 48,000-00 Cleaning expenses Rs. 10,500-00 Borewell expenses Rs. 3,00,400-00 Drainage expenses Rs. 40,000-00 Electricity burning bill Rs. 4,282-90 Notice expenses Rs. 500-00" 5. After entering appearance in the suit, the appellants raised a preliminary objection as to the maintainability of the suit as a summary suit and prayed for deciding that issue as a preliminary issue. The appellant also prayed for dispensing with the filing of the application for leave to defend so long such preliminary point is not decided. 6. It appears from record that the learned trial judge granted several adjournment to the prayers for deciding preliminary issue and also for dispensing with the filling of the application for leave to defend the suit and ultimately, without deciding the said point as a preliminary issue and without passing any Order on the application of the appellants for dispensing with the filing of the application for leave to defend, straightway passed a decree for the amount claimed in the suit. 7. Mr. 7. Mr. Nanavati, the learned senior advocate appearing on behalf of the appellant, at the first instance, by referring to the averments made in the plaint, strenuously contended that even on the basis of averments made in the plaint, the suit cannot be said to have come exclusively within the provision of Order 37 Rule 1 of the code unless some portion of the claim is abandoned by the plaintiffs. Mr. Nanavati contended that the learned trial judge did not reject his application for hearing of the suit on the question of deregistering the suit as a summary suit and at the same time, did not reject his clients’ prayer for dispensing with the filing of the application for leave to defend so long the preliminary point is not decided as a result his client did not file any application for leave to defend. 8. Mr. Nanavati further contends that even on the basis of the averments made in the plaint, the suit was not maintainable in view of the additional relief of damages claimed in the suit which can be decreed only on proof by giving evidence and proving the actual expenditure. Thus, the learned trial judge erred in law in passing the decree as a summary suit. Mr. Nanavati thus prays for setting aside the decree and remanding the matter back to the trial Court for treating the suit as an ordinary money suit by granting opportunity to his clients to file written statement. 9. Mr. Mehul S. Shah, the learned Counsel appearing on behalf of the plaintiffs-respondents, has on the other hand opposed the aforesaid contentions of Mr. Nanavati and contended that the appellants not having filed their application for leave to defend within the time fixed by the Code, the learned trial judge did not commit any wrong in passing the decree by treating it as an undefended summary suit. Mr. Shah further contends that the present appeal is not maintainable as some of the defendants have not been made party to this appeal and the decree being a joint one has attained finality so far as those non-appealing defendants are concerned. According to Mr. Shah there is even no scope of giving relief to those non-appealing defendants in terms of Order 41 Rule 4 or Order 41 Rule 33 unless those defendants are made respondents in this appeal. Mr. According to Mr. Shah there is even no scope of giving relief to those non-appealing defendants in terms of Order 41 Rule 4 or Order 41 Rule 33 unless those defendants are made respondents in this appeal. Mr. Shah, thus, prays for dismissal of this appeal. 10. We first propose to deal with the preliminary objection as to maintainability of this appeal in the absence of some of the non-appealing defendants in this appeal who admittedly suffered the decree and such decree has not been challenged by those defendants. 11. In Order to appreciate the said question, it will be profitable to refer to the provisions contained in Order 41 Rule 4 of the Code which is quoted below: “4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.— Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.” 12. The Supreme Court in the case of Mahabir Prasad vs. Jage Ram and others reported in AIR 1971 SC 742 while considering the scope of Order 41 Rule 4 of the Code made the following observations:— “No distinction in principle may be made between Ratan Lal Shah’s case (1970) 1 SCR 296 = ( AIR 1970 SC 108 ) and the present case. Competence of the appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the appellate Court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an Order had been made on a ground which was common to him and others has appealed. Power of the appellate Court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an Order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The view taken by the High Court cannot therefore be sustained.” (Emphasis supplied). 13. Thus, the preliminary objection taken by Mr. Shah is not tenable in the eye of law. 14. Now on merit, we find that in the suit, apart from the amount of damages in terms of the alleged agreement, the respondents also prayed for decree for various other expenditures allegedly made by them but on those grounds they can get a decree on proof of actual expenditure. Such a claim cannot come within the purview of Order 37 Rules 1 and 2 of the Code. The provisions contained in Order 37 Rules 1 and 2 are quoted below: “R. 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 respect 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 vary, 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 (1), the Order applies to the following classes of suits, namely:— (a) suits upon bills of exchange, hundies 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. R. 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 Order XXXVII of the Code of Civil Procedure, 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.] (Emphasis supplied by us). 15. It appears from the records that the plaint of the summary suit contained not only prayer for damages in terms of the alleged agreement but also other claims on account of various items of constructions done by the plaintiffs. 15. It appears from the records that the plaint of the summary suit contained not only prayer for damages in terms of the alleged agreement but also other claims on account of various items of constructions done by the plaintiffs. It further appears that after the filing of the suit, the plaintiffs filed an application on 20th February 2003 for injunction restraining the defendants No. 1 to 3 or their successors, assignees, power of attorney holders, representatives, officers, the present Trustees or future trustees from transferring the properties mentioned in the suit in any manner and also prayed that the defendant No. 4 might be restrained with regard to their leased land, the details of which were given in Schedule-I, from transferring the property in the name of the defendant No. 1 and the said application was marked as Exh. 5. It also appears that after entering appearance in the suit, the defendants filed an application on 5th April, 2003, vide Exh. 17, thereby praying for deregistration of the summary suit on the ground that the averments made in the plaint did not satisfy the conditions envisaged in Order 37 Rule 1 of the Civil Procedure Code. Exh. 18 is another application filed on the same date by the defendants thereby praying to stay all further proceedings of the suit till the disposal of Special Summary Suit No. 10 of 2003 filed by the defendants against the plaintiffs. 16. The learned trial Judge, by Order dated 12th February 2004, passed an Order for transfer of the suit to the Court of 5th Joint Civil Judge, Senior Division, Ahmedabad Rural for analogous trial of both the Summary Suits No. 10 of 2003 filed by the defendants of the Summary Suit No. 11 of 2003 and the Summary Suit No. 11 of 2003 out of which the present appeal arises. It further appears that, vide Exh. 36, an application was filed by the Estate Officer-AUDA on 18th March 2004 for deletion of AUDA’s name from the array of defendants. 17. All the above applications were adjourned from time to time and ultimately, 10th May 2006 was fixed for hearing of Exh. 5, 17, 18 and 36. 18. On 10th May 2006, the learned trial Judge, however, disposed of the suit itself by passing a decree which is impugned in this appeal. 19. 17. All the above applications were adjourned from time to time and ultimately, 10th May 2006 was fixed for hearing of Exh. 5, 17, 18 and 36. 18. On 10th May 2006, the learned trial Judge, however, disposed of the suit itself by passing a decree which is impugned in this appeal. 19. After hearing the learned Counsel for the parties and after going through the aforesaid material, we find that the learned trial Judge did not decide the question of deregistration of the suit on the allegation that on the basis of the averments made in the plaint itself, the suit cannot be heard as a Summary Suit but on the basis of the written arguments of the plaintiffs, decreed the suit. 20. It is true that if in a Summary Suit some additional claims are made which do not fall within the purview of Order 37 Rules 1 and 2 of the Code, the plaintiff can, at any time, abandon his additional claim to bring the suit within the purview of Order 37 Rules 1 and 2 of the Code. In the case before us, no such prayer was made and the Court has decreed the suit in full even in respect of additional claims not covered by Order 37 of the Code in clear violation of Rule 2 (1) (b) of Order 37. On reading the plaint as a whole, we are at one with Mr. Nanavati, the learned Senior Advocate appearing on behalf of the appellants that it was not within the competence of the learned trial Judge to decide the suit as a Summary Suit as the plaint stands. Since the plaintiffs did not pray for abandonment of any part of the claim, it was the duty of the learned trial Judge to direct the defendants to file their written statement and decide the suit as a regular suit. There is no doubt that the defendants did not file any written statement but made a prayer within the time fixed by law for filing written statement for deregistration of the suit by urging a preliminary point and the Court repeatedly adjourned such application. The Court also did not reject the prayer for preliminary hearing, which gave an impression in the mind of the defendants that they are not required to pray for leave to file written statement. 21. The Court also did not reject the prayer for preliminary hearing, which gave an impression in the mind of the defendants that they are not required to pray for leave to file written statement. 21. We, thus, find that in this case, the decree impugned cannot be passed in a summary way when extraneous claims of Rs. 10,00,000/- have been made which could be proved only by giving evidence and after giving an opportunity to the defendants to contest the claim. We further find that the date when the decree was passed was the date fixed for hearing of various interlocutory applications and, therefore, it was not within the province of the Court to decree the suit on that date when the prayer for deregistration of the suit was pending. 22. We, thus, find that it is a fit case where decree should be set aside as the additional claim of the plaintiff took it beyond the scope of Order 37 Rules 1 and 2(1) (b) of the Code. 23. The decree is set aside and the matter is remanded to the trial Court. The learned trial Judge is directed to hear the suit as a Regular Suit by giving opportunity to the defendants to file written statement. As the suit is pending from 2003, let the hearing of the suit be expedited and decided at the earliest, and at any rate, within six months from the date of communication of this order. 23.1 We, however, make it clear that we have otherwise not gone into the merits and only on the ground that on the averments made in the plaint as it stands today cannot justify the disposal of the suit as a Summary Suit, that we have set aside the decree. 23.2 The appeal is allowed accordingly. In view of the aforesaid Order passed in the appeal, the Civil Application does not survive and stands disposed of accordingly. In the facts and circumstances, there will be, however, no Order as to costs in both the matters.