Hrishikesh s/o Satyajit Wachasundar v. Vidushi, d/o. Prakash Agrawal, through her Power of Attorney Holder Shri Vedant, s/o. Prakash Agrawal
2023-04-19
M.S.JAWALKAR
body2023
DigiLaw.ai
JUDGMENT : (M.S. Jawalkar, J.) Heard. 2. The present Revision Application is filed being aggrieved by the order dated 07/11/2022 passed below Exhibit 15, the applicants are constrained to assail the same before this Court. 3. The brief facts of the case are as under : The respondent instituted a summary suit under Order 37 of the Civil Procedure Code for recovery of an amount of Rs.11,50,398/-. The summary suit came to be registered a Summary Civil Suit No. 22/2022, and is presently pending on the file of the 14th Joint Civil Judge (Senior Division), Nagpur. After the applicants filed an application before the learned Trial Court seeking rejection of plaint under Order VII Rule 11(a) of the Code of Civil Procedure, on the ground that the suit of the plaintiff is defective and filed with numerous incurable defects and it has also not mentioned the dates, sums and numbers in the pleadings in figures as well as in words as required by Order 6 Rule 2 (3) of the Civil Procedure Code, which came to be marked as Exhibit 15. The respondent filed his reply to applicants’ application that came to be marked as Exhibit 17. After advancing arguments orally, the applicants filed their brief written notes of arguments. By its order dated 07/11/2022, the learned Trial Court rejected applicants’ application seeking rejection of plaint. Being aggrieved by the order dated 07/11/2022 passed below Exhibit 15, the applicants are constrained to assail the same before this Court. 4. The applicants’ contention is that the learned Trial Court has apparently failed to exercise the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure, 1908 which has been held to be mandatory in a catena of decision of the Hon’ble Supreme Court of India. It is further contended that the provisions of Order 37 of the Code of Civil Procedure provide for a special procedure in respect of a specific class of recovery claims. It is a departure from the regular procedure prescribed for trial of money claims. A litigant who wishes to avail of the special remedy and procedure prescribed under Order 37 of the Code is required to comply with all the special requirements therein strictly.
It is a departure from the regular procedure prescribed for trial of money claims. A litigant who wishes to avail of the special remedy and procedure prescribed under Order 37 of the Code is required to comply with all the special requirements therein strictly. Without compliance with all the special requirements prescribed under Order 37, the chain of cause of action cannot be said to be completed for filing of plaint and is to be tried as a plaint under Order 37 of the Civil Procedure Code. It is therefore submitted that in the event of even a single default in the chain that constitutes and completes the cause of action for treating the plaint as one under Order 37, it would have to be held that the plaint fails to disclose a complete cause of action for it to be treated as a plaint under Order 37 of the Code of Civil Procedure. It is further contended that the learned Trial Court erred in observing that the defects and non-compliance of the provisions of Order 37, if any, are curable and a matter of trial. It is submitted that the defects are curable only till such time as the learned Trial Court takes up the application under Order 7 Rule 11 for consideration. The learned Trial Court cannot sit over a defective plaint in the hopes that the plaintiff may cure the defects at a later stage. The plaintiff has to remain diligent and act with alacrity. 5. Learned Counsel for applicants relied on following citations: 1) K. Akbar Ali Vs. K. Umar Khan and others, reported in 2021 SCC OnLine SC 238 2) Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/ Managing Trustee, reported in (2012) 8 SCC 706 3) Om Prakash Srivastava Vs. Union of India and another, reported in (2006) 6 SCC 207 4) Union of India and others Vs. A.K. Pandey, reported in (2009) 10 SCC 552 5) Jivaraj Motilal Vs. Marthaka Plastic Industries and others, in C.R.P. No.4748/1982 dated 17/07/1985 of Madras High Court 6) Meera Sahni Vs. Lieutenant Governor of Delhi and others, reported in (2008) 9 SCC 177 7) Khera Handloom Supply Vs. O.B. Exports and ors., reported in 1989 SCC OnLine Del 155 6.
A.K. Pandey, reported in (2009) 10 SCC 552 5) Jivaraj Motilal Vs. Marthaka Plastic Industries and others, in C.R.P. No.4748/1982 dated 17/07/1985 of Madras High Court 6) Meera Sahni Vs. Lieutenant Governor of Delhi and others, reported in (2008) 9 SCC 177 7) Khera Handloom Supply Vs. O.B. Exports and ors., reported in 1989 SCC OnLine Del 155 6. The learned Counsel for respondent supported the order passed by the learned Trial Court and submitted that all compliances as per Order 37 Rules 1 & 2 are made, the learned Trial Court has rightly appreciated the contents in the plaint and appropriate order is passed. Hence, the present Civil Revisions Application is liable to be dismissed. 7. The learned Counsel for respondent relied on following citations: 1) Indian Bank Vs. Maharashtra State co-operative Marketing Federation Ltd., reported in (1998) 5 SCC 69 2) Jyotsana Valia Vs. T.S. Parekh & Co., reported in 2007 (4) Mh.L.J. 517 3) Sicom Ltd. Vs. Prashant Tanna & Ors., reported in 2004(2) CTC 641 4) Hansaben Dhankecha Vs. Virbharasingh Jadeja, in High Court Gujrat in Civil Revision Application No.13/2019 5) M/s. Khera Handloom Vs. M/s O.B. Exports and Others, reported in 1989 SCC OnLine Del 155 6) M/s. Swarovski India Pvt. Ltd. Vs. M/s. Spa Agencies Pvt. Ltd., reported in 2009 SCC OnLIne Del 1777 7) Indrajith Lankesh Vs. Nandi Economic Corridor Enterprises Ltd., in High Court of Karnataka in Civil Revision Petition No.506/2021 8) Sacha Finance Vs. Jayant Bhavanji Soni, of this Court in Commercial Sum. Suit No.00938/2021 9) Aman Gulyani Vs. Praveen Kumar, reported in 1999 SCC OnLine Del 752 10) M/s. Ganesh Trading Co. Vs. Moji Ram, reported in (1978) 2 SCC 91 11) Munni Devi Vs. Captain Harbeer Singh Pawar, of Allahabad High Court in Civil Revision No.18/2007 12) Naveen Kumar Vs. Meenakshi Goel, reported in AIR OnLine 2021 Del 623 13) Mena Dhanak Vs. Naynaben Doshi, Manu/GJ/0076/2021 14) Shakti Bhog Food Industries Ltd. Vs. Central Bank of India & Anr., reported in (2020) 17 SCC 260 15) Salem Adv. Bar Association Vs. Union of India, reported in (2003) 1 SCC 49 16) All India Reporter Ltd. Vs. Ramchandra Datar, of Principal Seat of this Court in A.F.O.D. No.13/1954 17) Bachan Devi & Anr. Vs. Nagar Nigam, Gorakhpur & Anr., reported in (2008) 12 SCC 372 18) M/s. B.P. Khemka Pvt. Ltd. Vs.
Bar Association Vs. Union of India, reported in (2003) 1 SCC 49 16) All India Reporter Ltd. Vs. Ramchandra Datar, of Principal Seat of this Court in A.F.O.D. No.13/1954 17) Bachan Devi & Anr. Vs. Nagar Nigam, Gorakhpur & Anr., reported in (2008) 12 SCC 372 18) M/s. B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Anr., reported in 1987 2 SCC 407 8. I have heard both the parties at length. Perused the impugned order and considered the judgment relied on by the parties. Learned Counsel for the applicants vehemently argued that, the Order 37, Rules 1 and 2 of the Code of Civil Procedure are mandatory. The mandatory consequences of non-compliance with the same, result that the cause of action in the plaint would be incapable. The provisions for summary proceedings is having special features and unless requirements are satisfied, the suit is not maintainable. If Order 37, Rules 1 and 2 of the Code of Civil Procedure is perused, it is in respect of institution of summary procedure. Under Order 37, Rule 2 of the Code of Civil Procedure, it is the plaintiff’s desires whether to proceed under these provisions of summary proceedings or to file regular suit. Learned Counsel for the applicants vehemently submitted that if the plaintiff opts for filing of summary suit, the plaint 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)”. 9. It is contended that the plaint doesn’t contain the statement that no relief, which does not fall within the ambit of this Rule, has been claimed in the plaint. In absence of such statement, the suit is liable to be rejected. However, learned Trial Court has not considered the same. In spite of objection under written statement, the plaintiff has not taken any steps to amend the same. It is contended that the non-compliance of Order 37, Rule 2(b) of the Code of Civil Procedure shall be disruption in cause of action. 10.
However, learned Trial Court has not considered the same. In spite of objection under written statement, the plaintiff has not taken any steps to amend the same. It is contended that the non-compliance of Order 37, Rule 2(b) of the Code of Civil Procedure shall be disruption in cause of action. 10. Learned counsel for the applicants relied on K. Akbar Ali (supra) wherein the Hon’ble Apex Court held that in any case, an application under Order VII, Rule 11 of the C.P.C. for rejection of the plaint requires a meaningful reading of the plaint as a whole. The clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly, the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. 11. Learned Counsel for applicants placed reliance on Church of Christ Charitable Trust (supra) wherein the Hon’ble Apex Court has held that if on a meaningful, not formal reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 of C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 of CPC. Learned counsel further relied on the same judgment in support of his contention that, if the conduct of the plaintiff, bereft of required materials as mandated by the statutory provisions, the plaint is liable to be rejected at this stage itself as the cause of action pleaded in the plaint is vitiated. However, in the said matter, the question of non-joinder of necessary party was there. Moreover, in the matter before the Hon’ble Apex Court, the date of agreement was not mentioned. It is held that if date is one which attracts bar of limitation, plaint must confirm the Order 7, Rule 6 of the Civil Procedure Code. 12.
However, in the said matter, the question of non-joinder of necessary party was there. Moreover, in the matter before the Hon’ble Apex Court, the date of agreement was not mentioned. It is held that if date is one which attracts bar of limitation, plaint must confirm the Order 7, Rule 6 of the Civil Procedure Code. 12. Learned Counsel for applicants also relied on Om Prakash Srivastava (supra) in support of his contention that “cause of action” means every facts, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to a judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in “cause of action”. 13. Learned counsel further relied on Union of India (supra) in support of his contention that, it is a rule of statutory construction that where a statute is framed in terms of command, and there is no indication from the nature or wording of the act or the surrounding circumstances that it is to receive a permissive interpretation, it will be construed as pre-emptory. Ordinarily the words ‘shall’ and ‘must’ are mandatory, and the work ‘may’ is directory, although they are often for used inter-changeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice verse. It is held by the Hon’ble Apex Court that the principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. 14. Learned Counsel for applicants also relied on Jivaraj Motilal (supra) wherein Madras High Court held that Order 37 of Code of Civil Procedure prescribes a strict and stringent procedure that reference to the particular clause of suit to which those provisions are to be applied.
14. Learned Counsel for applicants also relied on Jivaraj Motilal (supra) wherein Madras High Court held that Order 37 of Code of Civil Procedure prescribes a strict and stringent procedure that reference to the particular clause of suit to which those provisions are to be applied. The pivotal provisions of the stringent procedure so prescribed are to be found in Order 37, Rules 2 and 3 of the Civil Procedure Code. 15. Learned Counsel for the applicants further relied on Meera Sahni (supra) wherein the Hon’ble Apex Court held that it is by now a certain law that an action to be taken in a particular manner as provided by statute, must be taken, done or performed in the manner prescribed and in no other manner. 16. Learned Counsel for applicants further relied on Khera Handloom (supra) wherein Division Bench of Delhi High Court held that, “the first thing which has to be considered is whether the provisions of Order 37 Rule 2 are mandatory or directory. As already noted, the submission of the learned counsel for the defendants is that the said rule, on its plain reading, discloses that it is mandatory. The learned counsel submits that Rule 2(1) uses two words, namely, "may" and "shall" in the same sentence. It is submitted that the use of these two different words show that whereas it is not mandatory for the plaintiff to file a suit under Order 37 and a plaintiff has an option whether to take recourse to the special procedure provided by Order 37 or not but, while presenting the plaint, the plaintiff must see that the plaint contains the particulars specified in the said rule. The use of the word "shall" indicates that the rule is mandatory in nature.” 17. As against this the learned Counsel for respondent relied on Indian Bank (supra) wherein the Hon’ble Apex Court held that, “The provisions contained in Section 10 is a general provision applicable to all categories of cases. Whereas the provisions contained in Order 37 apply to certain classes of suits. One provides a bar against proceedings with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. …….
Whereas the provisions contained in Order 37 apply to certain classes of suits. One provides a bar against proceedings with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. ……. Considering the object of both the provisions i.e. Section 10 and Order 37 wider interpretation of the word “trial” is not called for. The word “trial” in Section 10, in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit, the “trial” really begins after the court or the judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.” In my considered opinion, the ratio laid down in the said judgment is not applicable in the present set of facts as the question before the Hon’ble Apex Court was that whether bar under Section 10 to proceed with the trial of subsequently instituted suit under Order 37 is applicable or not and in this context the Hon’ble Supreme Court explained what is the meaning of “trial” in context of summary suit is. 18. The learned Counsel for respondent also relied on Jyotsana Valia (supra), to demonstrate what is acknowledgment. It is the case of the respondent that the amount is acknowledged by the defendant herein as such summary suit is maintainable. In the present matter, the defendant acknowledged settled account and confirmed the same which means he has accepted the liability. The Full Bench of this Court held that a summary suit on a settled accounts, duly confirmed by the defendants is maintainable as it is an acknowledgment by the defendant in the ledger in which mutual accounts have been entered and the accounts settled between them. Such settling of accounts gives rise to a written contract on a fresh cause of action, with an implied promise to pay the amount settled.
Such settling of accounts gives rise to a written contract on a fresh cause of action, with an implied promise to pay the amount settled. A summary suit would therefore lie on ‘Settled accounts’ duly confirmed by the defendants. Similar is the view taken in Sicom Ltd. (supra), wherein full bench of this Court held that a suit can be said to fall outside the ambit of Order 37 only if the relief claimed therein is based on an action the nature of which does not fall within the classes specified in Order 37, Rule 1(2). A relief cannot be said to fall outside the ambit of Order 37, Rule 2 merely because the quantum thereof is excessive, so long as the nature of the relief falls within the clauses specified in Order 37, Rule 1(2). 19. The learned Counsel for respondent relied on Hansaben Dhankecha (supra), wherein the Gujarat High Court held that the plaint does not become liable to be rejected in exercise of power under Order 7 Rule 11 of the Civil Procedure Code. The compliance of provisions of Rules and sub-rules of Order 37 is a matter of inquiry and evidence. Such a case ipso facto will not render the plaint liable to be rejected. It cannot be said that the plaint become barred by any law because of any statement in the plaint. 20. I have gone through the copy of plaint placed along with Revision Application so far as compliance of Order 37 Rule 1(a), it is specifically mentioned in the suit that “Summary suit under Order 37 of the Civil Procedure Code for recovery of amount of Rs.11,50,398/-.” As such, I do not see any reasons to discuss those judgments relied on by the Counsel for respondent wherein it is discussed whether Order 37, Rule 2(1) is mandatory or directory non-compliance. Only lacuna pointed out by learned Counsel for applicants is that the said inscription not below the number of suit but below names of parties. 21. The learned Counsel for respondent also relied on M/s. Khera Handloom (supra), wherein it is held in para 14 which reads thus: “(14) It will be seen from the above that when a suit is filed under Order 37, the defendant is under a disadvantage. He is obliged to enter appearance within 10 days failing which the suit may be decreed.
He is obliged to enter appearance within 10 days failing which the suit may be decreed. Because of the fact that the right of the defendant to enter appearance and file written statement is restricted, the Legislature thought' that adequate provision should be made so that when the plaint is received by the defendant, he is put to notice that a suit has been filed under the special provisions of Order 37 and that the normal procedure as provided by the Code of Civil Procedure would not be applicable. It is for this reason that in Order 37 Rule 2 it has been provided that the plaintiff must state three things, namely, that there should be a specific averment that the suit is filed under Order 37 and that no relief which does not fall within the ambit of that rule has been claimed and, furthermore, in the title of the suit it has to be stated that the suit is under Order 37 of the Code of Civil Procedure, 1908. If all these three things are stated then the defendant will not be heard to say that he was not aware of the special requirement of Order 37 because he might have thought the suit was filed in normal course and not under the special provisions of Order 37.” It is further held that though Clause (b) of Rule 2 (1) of Order 37 is couched in negative terms, in our opinion there would be substantial compliance with this provision if an averment to that effect is made in positive term by the plaintiff in the plaint. It has held that the relief prayed in the suit falls within the ambit of Order 37 Rule 2 of the Civil Procedure Code. This fulfills the requirement of Order 37 Rule 2(1)(b) even though it is stated in a manner differently than what has been indicated in the said rule. 22. The learned Counsel for respondent also relied on M/s. Swarovski India Pvt. Ltd. (supra), Indrajith Lankesh (supra), Sacha Finance (supra) and Aman Gulyani (supra), wherein similar is the view taken that even though there is no inscription immediately below the number of suit in the plaint as envisage by Clause-C of the Sub Rule 1 of Rule 2 of Order 37 of the Civil Procedure Code.
However, evidently the suit is based on dishonored cheque and there are averments in conformity with Sub Clause A-B of Sub-rule 1 of Rule 2 of Order 37 of the Civil Procedure Code. In present matter inscription is there as required but under the names of the parties. 23. The learned Counsel for respondent also relied on M/s. Ganesh Trading Co. (supra) and Munni Devi (supra), in support of his contention that the Court is empowered to grant permission to amend the plaint, even though there is any lacuna as per contention of the defendant. The learned Counsel for respondent also relied on Naveen Kumar (supra), Mena Dhanak (supra), Shakti Bhog Food Industries Ltd. (supra) and Salem Adv. Bar Association (supra), in support of his contention that while deciding application under Order 7 Rule 11 of the Code of Civil Procedure, the Court is required to look only at plaint in its entirety along with documents annexed thereto and not defence set out by defendant in written statement. In Mena Dhanak (supra), the Gujarat High Court held that “It was the defendant’s case that the suit is not maintainable because it is an oral contract. The procedure under Order 37 Rule 4 cannot be followed. It is held that the case of the applicant was that the suit instituted by the respondents original plaintiff in the suit which should not be tried as Summary Suit. In essence therefore, the grievance of the applicant/defendant in an application under Exhibit 13 was that the suit could not be tried as a Summary nature but it could have been tried as a long cause suit. Reading the application under Order 7 Rule 11 would indicate that the case of the defendant was that the recovery of money on the basis of cheque was according to the applicant by way of an oral contract, so at best, as held by the Kerla High Court in case of Aravindakshan Vs. Sukumaran reported in MANU KE/0936/1999, there was no bar to the filing of the suit. The dispute was as to whether it was tried as a summary suit or which could be tried as an ordinary suit.
Sukumaran reported in MANU KE/0936/1999, there was no bar to the filing of the suit. The dispute was as to whether it was tried as a summary suit or which could be tried as an ordinary suit. Such an issue can only be adjudicated after an application for leave to defend was filed.” It is held that what was disputed by the defendant was the jurisdiction of the summary procedure and it could not fall within the parameter of the objections envisage under Order 7 Rule 11 of the Civil Procedure Code. 24. The learned Counsel for respondent further placed reliance on Shakti Bhog Food Industries Ltd. (supra), however, the said matter before the Hon’ble Apex Court, there was issue of limitation. The Court held that whether this plea taken by the appellant that he was under belief that its claim was under process by the Regional Office and the regional office would be taking any appropriate decision at the earliest. However, his belief was shaken after receipt of letter from the Senior Manager of the Bank dated 08/05/2002 followed by another letter dated 19/09/2002, whether this plea taken by the appellate is genuine and legitimate, would be a mixed question of fact and law, depending on the response of respondents. In my considered opinion with due respect to the ratio laid down, it is not applicable in present matter. 25. The learned Counsel for respondent also relied on Salem Adv. Bar Association (supra), wherein it is held that “it appears to us that the said clauses (clause (e) and (f) in Order 7 Rule 11) being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11 (f), the court should ordinarily give an opportunity for rectifying the defects and in the event of the same not being done the court will have the liberty or the right to reject the plaint”. However, in the said citations, there was no question of summary suit involved in the matter. Similar is the view taken in All India Reporter Ltd. (supra), Bachan Devi & Anr. (supra) and M/s. B.P. Khemka Pvt. Ltd. (supra).
However, in the said citations, there was no question of summary suit involved in the matter. Similar is the view taken in All India Reporter Ltd. (supra), Bachan Devi & Anr. (supra) and M/s. B.P. Khemka Pvt. Ltd. (supra). It is held by Hon’ble Apex Court that remedial amendment have to be liberally construed so as not to deny their efficacy and it is the duty of the Courts to avoid a conflict between two sections. 26. In this background and settled position of law now let us perused the copy of suit, as per Order 37 Rule 2, it would be option of the plaintiff to file summary suit or regular suit once he decide to file a summary suit plaint shall contained specifically A) specific averments to the fact the suit is filed under Order 37, B) it should contained that no relief 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 suit in the title of the suit namely “under Order 37 of the Act of Civil Procedure Code, 1908. 27. In suit, there is specific inscription as under: “summary suit under Order 37 of the Civil Procedure Code for recovery of amount of Rs.11,50,398/-”. However, it is contention of the defendant that it is not below the number but it is there after name of the parties. However, in my considered opinion, it is sufficient compliance of Order 37 Rule 2 (c). So far as Order 37 Rule 2(a) is concerned, there is specific averments in paragraph No.18 to 22 that suit is filed under Order 37 as a summary suit. Now, question is of Order 37 Rule 2(b) as per this provision, the suit shall contend that no relief which does not fall within the ambit of the Rule has been claimed in the plaint. As held in Delhi High Court in M/s Khera Handloom Supply (supra), the provisions of Order 37 Rule 2 being procedural in nature, the requirement of the said provision would be satisfied if there has been substantial compliance with the same. In other words, the plaint must show that there has been compliance with the provisions of Order 37, Rule 2(1) (a), (b) and (c).
In other words, the plaint must show that there has been compliance with the provisions of Order 37, Rule 2(1) (a), (b) and (c). For example, though Sub-rule (b) of rule 2(1) of Order 37 is couched in negative terms, there would be substantial compliance with this provision if an averments to this effect is made in positive term by the plaintiff in the plaint. It is specifically averred in the plaint that the present suit is maintainable and there is no legal impediment in respect of the same. 28. It is submitted in the plaint that the transaction involved in the instant matter and the claim raised in the instant matter are based on the documentary evidence and the acknowledgment of the debt by the defendants. Thus, there is no legal impediment in trying the instant suit in the manner as framed and filed by the plaintiff. In paragraph Nos.23 of the plaint, it is specifically averred that “the said acknowledgment clearly states of a pre-existing debt, an absolute unqualified liability with an obligation to repay the same in future”. Thus the summary suit filed by the plaintiff based on settled account is maintainable and covered under Clause 2(b)(i) of Rule 1 of Order 37 of Civil Procedure Code. So in my considered opinion, this is sufficient compliance of Order 37 Rule 2(b) of the Civil Procedure Code. There is no case made out for rejection of plaint. The learned Trial Court rightly appreciated that plaintiff has complied all the mandatory requirements of Order 37 of the Civil Procedure Code. The learned Trial Court rightly held that at the most, it can be said to be an irregularity but certainly not a ground for rejection of the plaint. Prima facie, on perusal of plaint, the claim is based on acknowledgment of the liability by the defendants. As such, there is no illegality in the order passed by the learned Trial Court below Exhibit 15 which is filed under Order 7 Rule 11 of the Civil Procedure Code. The application is rightly rejected. There is no substance in the present Revision Application. No ground is made out for rejection of plaint. As such, Revision Application is dismissed. At this juncture, the learned Counsel for applicants submits that interim order passed on 24/03/2023 be continued for another two weeks. However, I do not see any reason to continue the same.
There is no substance in the present Revision Application. No ground is made out for rejection of plaint. As such, Revision Application is dismissed. At this juncture, the learned Counsel for applicants submits that interim order passed on 24/03/2023 be continued for another two weeks. However, I do not see any reason to continue the same. As such oral request is rejected.