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2015 DIGILAW 1342 (BOM)

Hemant v. Rawassa Construction, Mumbai

2015-06-22

A.P.BHANGALE

body2015
JUDGMENT : Rule returnable forthwith. Heard finally with the consent of Mr. A.S. Agrawal, learned Counsel for the Applicant and Mrs. Rajeshree Dewani, learned Counsel for the Respondents. 2. The appellants herein (original plaintiffs) instituted Summary Civil Suit No. 108 of 2011 in the Court of 5th Joint Civil Judge (S.D.), Nagpur. Power of the said Court to entertain Summary Suits under Order 37 of the Code of Civil Procedure is not in dispute. The revision applicants have to challenge legality, propriety and correctness of the order dt. 25-9-2014 below Exh.29 in the said Summary Civil Suit No. 108 of 2011. The applicants have grievance that the provisions of Order 37 of the Code of Civil Procedure were not properly followed by the Court below in a suit for recovery of substantive sum of money. After the applicants filed Summary Civil Suit, the respondents delayed in filing their appearance and sought condonation of delay in filing appearance. The Court below by order dt.6-8-2012 condoned the delay. While applications for issuance of summons for Judgment was also filed on 1-10-2012 and the respondents were served with that summons for Judgment on 10-10-2012. They filed an application for leave to defend on 24-10-2012. That application for leave to defend was replied by the applicants on 22-11-2012. In these facts and circumstances, the Court below condoned the delay as well as by the impugned order granted leave to defend the suit. This impugned order is challenged on the ground that it is based on conjectures and surmises and without recourse to the material on record alleging that there is material irregularity and that the error is apparent on the face of the record. Thus, revisional jurisdiction of this Court is invoked for to interfere with the impugned order. 3. According to the learned Counsel for the revision applicants, the settled principles in the ruling by three Judge Bench of Hon'ble Apex Court in the case of M/s Mechalee Engineers and Manufacturers vs. M/s Basic Equipment Corporation, reported in AIR 1977 SC 577 , (1976) 4 SCC 687 ought to have been followed. The said ruling would indicate that the High Court cannot interfere with the exercise of discretion by the subordinate Court in granting unconditional leave under Order 37, Rule 3 of the Code of Civil Procedure to defend upon grounds which are prima facie reasonable. In para Nos. The said ruling would indicate that the High Court cannot interfere with the exercise of discretion by the subordinate Court in granting unconditional leave under Order 37, Rule 3 of the Code of Civil Procedure to defend upon grounds which are prima facie reasonable. In para Nos. 8 and 9 of the said ruling principles were summarised as reproduced from the earlier ruling, which are mentioned as below : "8. In Smt.Kiranmoyee Dassi vs. Dr. J. Chatterjee, AIR 1949 Cal 479, after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 17, Civil Procedure Code. In the form of the following propositions (at p. 253) : a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to Judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode or trial but not as to payment into Court or furnishing security. d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence." "9. The case before us certainly does not fall within the class (e) set out above. It is only in that class of case that an imposition of the condition to deposit an amount in Court before proceeding further is justifiable." 4. Thus, the defendant in a Summary suit may satisfy the Court that he has good or reasonable defence to the claim on its merits. In other words, the plaintiff is not entitled to Judgment when defendant has good or reasonable defence. It is only in those cases where defendant has no defence or defence tried to be set up is illusory or sham or practically moonshine then the plaintiff is ordinarily entitled to Judgment in Summary suit. While granting leave to defend, the Court may certainly protect the plaintiff by insisting upon the amount claimed to be deposited in the Court before proceeding further with the suit. The same principle appears to have been followed in the case of Neebha Kapoor vs. Jayantilal Khandwala and others, reported in 2008 (5) Mh.L.J. (S.C.) 87 as reflected in para 11 thereof. My attention is also invited to the Bombay High Court (Original Side) Rules, 1980 in relation to Summary suits. If the plaintiff is lethargic in not taking summons within six months of filing of the plaint, delay by itself may not entitle the defendant to unconditional leave to defend. The rules indicate need to exercise judicial discretion available in such cases in the matter of granting conditional or unconditional leave to defend the suit. If the plaintiff is lethargic in not taking summons within six months of filing of the plaint, delay by itself may not entitle the defendant to unconditional leave to defend. The rules indicate need to exercise judicial discretion available in such cases in the matter of granting conditional or unconditional leave to defend the suit. The object of prescribing different periods in Order 37 of the Code of Civil Procedure is to serve summons in prescribed format, to enter appearance in such suit and obtain leave to defend the suit also indicate that if there is sufficient cause to excuse the delay in the matter of entering appearance or applying for leave to defend, judicial discretion is exercisable to condone delay in the matter of grant or refusal of leave to defend the suit. The crux of the matter is that if defendant is able to satisfy the Court about goodness of his defence, the Court may condone delay and grant leave to defend that may be conditional or unconditional depending upon the facts and circumstances of the case. In other words, Order 37 of the Code of Civil Procedure provides for summary procedure and unlike the ordinary suit, the defendant is not entitled to defend the suit as of right but must apply for leave to defend the suit. 5. The provisions of Order 37 as well as procedure which is followed in such cases is discussed by the Division Bench of this Court in Bankay Bihari G. Agrawal and others vs. M/s. Bhagwanji Meghji and others, reported in 2001 (1) Mh.L.J. 345 . The questions which was posed before the Court were as follows : Question No. 1 : What is the legal consequence of a Summons for Judgment not being taken out by a Plaintiff within the period of 6 months of the plaint being filed ? This Court answered thus : The suit is liable to be placed on the board of the Chamber Judge for dismissal. It is open for the plaintiff to contend before the Chamber Judge that for good reasons the suit ought not to be dismissed. It is left to the judicial discretion of the Chamber Judge to dismiss the suit or direct it to proceed on such terms as he deems fit. It is open for the plaintiff to contend before the Chamber Judge that for good reasons the suit ought not to be dismissed. It is left to the judicial discretion of the Chamber Judge to dismiss the suit or direct it to proceed on such terms as he deems fit. Question No. 2 : Upon such failure of the Plaintiff, is the Defendant, as a matter of course, entitled to unconditional leave to defend the suit, irrespective of the merits of the defence ? This Court answered thus : A delay in taking out summons for Judgment beyond the period of six months prescribed by Rule 227 does not automatically entitle the defendant to unconditional leave to defend the suit; but it is a relevant factor to be considered in conjunction with the nature of the defence while granting conditional or unconditional leave to defend the suit or refusing the application for leave to defend. 6. Considering the answers to the questions which were raised before the Division Bench of this Court, the matters regarding condonation of delay or grant or refusal of leave to defend conditionally or otherwise are left to the area of judicial discretion. It has a wide scope as the consequence need not be fatal if litigant commits lapses in not approaching the Court within the time prescribed by the rules. Thus, the lapses may occur on the part of the litigant or Advocate representing him. But, the effort of the Court is to pass an order in the larger interest of justice so that the litigant ought not to be penalised on account of his bona fide mistake. This is on the principle "to err is a human". Reference is made to the ruling in the matter of condonation of delay for sufficient cause or on account of mistakes committed by litigants or by lawyers representing litigants. 7. The learned Counsel who opposed revision pointed out rulings in the case of State of M.P. and another vs. Pradeep Kumar and another reported in (2000) 7 SCC 372 and in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in (2013) 12 SCC 649 . 8. 7. The learned Counsel who opposed revision pointed out rulings in the case of State of M.P. and another vs. Pradeep Kumar and another reported in (2000) 7 SCC 372 and in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in (2013) 12 SCC 649 . 8. The object of summary procedure prescribed under Order 37 of the Code of Civil Procedure is primarily to ensure that such suits are disposed of expeditiously by following summary procedure as against the normal procedure in Regular Civil Suit, which may be time consuming. Therefore, certain periods of limitation are introduced with the object to prevent unreasonable obstruction by the defendant who has no defence whatsoever to such a suit mainly based on Negotiable Instruments. But, when defendant enter into appearance, he can satisfy the Court about prima facie goodness of his defence and he is certainly entitled to apply for conditional or unconditional leave to defend, which may be granted upon just terms and conditions or even unconditionally as per judicial discretion available with the Court looking into facts and circumstances of a particular case. Section 115 of the Code of Civil Procedure allow this Court to exercise revisional power over subordinate Courts in limited cases wherein order passed is beyond jurisdiction as vested in the subordinate Court by law or when subordinate Court appears to have failed to exercise jurisdiction so vested or acted illegally or with material irregularity. Looking into principles under section 115 of the Code of Civil Procedure, the impugned order granting unconditional leave to defend to defendants after the delay was condoned appears well within judicial discretion of the Court below. Considering the facts and circumstances of the case that the suit was instituted in the Court of Joint Civil Judge (Sr.Dn.), Nagpur on 1-4-2011 and the date for appearance of defendants was fixed on 3-11-2011 the defendants appeared on 28-11-2011 and applied for condonation of delay in appearance, to which reply was filed by the plaintiff on 5-12-2011. By order dt.6-8-2012 delay was condoned subject to payment of costs which was deposited. Thus, in these circumstances, considering the time granted in the Court below and the order passed by the Court below to grant unconditional leave, no serious prejudice would result to the plaintiff if suit is heard expeditiously by 5th Joint Civil Judge (Sr.Dn.), Nagpur. By order dt.6-8-2012 delay was condoned subject to payment of costs which was deposited. Thus, in these circumstances, considering the time granted in the Court below and the order passed by the Court below to grant unconditional leave, no serious prejudice would result to the plaintiff if suit is heard expeditiously by 5th Joint Civil Judge (Sr.Dn.), Nagpur. The Court below shall be mindful of the fact that the suit was instituted under Order 37 of the Code of Civil Procedure and may proceed further to hear the suit according to law considering the defence raised by the defendants expeditiously and as early as possible. In the circumstances, no interference is warranted in the impugned order. With these observations, the revision application is disposed of.