Ahmad Wani vs Gulzar Ahmad Guroo

Mohammad Yaqoob Mir, J.—Instant Civil 1st appeal is directed against the judgment and decree dated 01.02.2010 passed by the Court

of District Judge, Shopian. Respondent (hereinafter referred to as plaintiff) has instituted a suit under Order XXXVII of the Code of Civil

Procedure (for short the Code) for recovery of an amount of Rs. 7.00 lacs (seven lacs) with interest @ 14%. The appellant (hereinafter referred to

as the defendant) is alleged to have issued various cheques for an amount of Rs. 1.50 lacs (cheque No. 18678120 dated 13.7.2007), Rs. 2.00

lacs (cheque No. 18678140 dated 22.7.2007), Rs. 1.50 lacs (cheque No. 189678141 dated 27.7.2007) and Rs. 2.00 lacs (cheque No.

18678142 dated 28.07.2007), drawn on J & K Bank Ltd. Branch office, Pulwama. The cheques were presented before the concerned Bank but

were returned for want of sufficient funds. Thereafter on repeated requests when the amount was not paid, the plaintiff filed the suit on the strength

of said cheques, same has been decreed.

According to learned counsel for the defendant, the suit is styled to have been tried under Order XXXVII of the Code but, in effect, procedure

prescribed, therefore, has not been followed at all. Buttressing the submission, referred to the interim orders recorded by the trial court. On

04.09.2008 suit has been presented, notice issued to the defendant. Then after various routine orders on 18.11.2008, it has been recorded that the

counsel for the plaintiff is present, defendant be summoned in accordance with XXXVII of the Code. On 27th December, 2008, it has been

recorded that the defendant has presented an application seeking leave to defend the suit. As against said application objections are shown to have

been filed by the plaintiff on 26th March, 2009. Then on 14th May, 2009, it is recorded that the parties are perhaps trying to settle the dispute

amicably. On 31st August, 2009, the defendant has been set in exparte. On 12th January, 2010 arguments in exparte are shown to have been

heard and finally suit has been decreed in exparte on 01.02.2010.

The argument of the learned counsel for the defendant (appellant) has substance. Trial court, in fact, initially has proceeded in the matter in

accordance with the procedure other than what is prescribed under Order XXXVII of the Code. Order XXXVII provides a summary procedure.

The mechanism i.e., procedure prescribed has been observed in breach. When a particular mechanism is prescribed, same has an intent and

object. Departure there from would mean trial of the suit in regular mode.

Contention of the learned counsel for the plaintiff is that since defendant has entered appearance, he has filed application seeking leave to

defend, objections have been filed by the plaintiff, non-observance of procedure prescribed under Rule 2 and 3 of Order XXXVII now pales into

insignificance.

Admittedly, the suit has been instituted under Order XXXVII C.P.C. because order applies to the suits upon bills of exchange. Cheque is a bill

of exchange as defined under Section 6 of the Negotiable Instruments Act. The trial court on the presentation of the suit was required to issue

summon in Form 4 Appendix B of C.P.C. Sub-rule (3) of Rule 2 provides that after such service if the defendant does not appear, the allegation in

the plaint shall be deemed admitted and the plaintiff shall be entitled to decree. Rule 3 provides that the defendant may at any time within ten days

of such service enter appearance in person or by pleader. Sub-rule (3) of Rule 3 provides that on the day of entering the appearance of the

defendant, notice of such appearance shall be given to the plaintiffs pleader or the plaintiff himself. Thereafter plaintiff in accordance with sub-rule

(4) of Rule 3 has to serve for the defendant a summon for the judgment in Form 4-A of Appendix B. Then in terms of sub-rule (5) of said Rule,

within ten days the defendant has to apply for leave to defend the suit, which is to be granted only when defendant indicates that he has a

substantial defence to raise Rule 4 of Order XXXVII of the Code also provides that after decree, the Court, under special circumstances, can set

aside the decree, stay or set aside execution and give leave to the defendant to defend the suit.

In the instant case, procedure as prescribed has not been observed as is clear from the proceedings recorded by the trial court and as referred

hereinabove.

Defendant, no doubt, has appeared and sought leave and as against application seeking leave objections have been filed by the plaintiff but said

application has remained to be decided on the count that probably parties are trying to settle the dispute amicably. A cursory look on the interim

orders recorded by the trial court would suggest that there has been irregularity and inconsistency in the proceedings for the reasons recorded

therein. Sometimes plaintiff, sometimes defendant has remained absent, sometimes conditions were abnormal and both had remained absent.

When a suit is tried under Order XXXVII of the Code i.e., in a summary manner, then the procedure and mechanism as prescribed therein has

to be followed in its true spirit. If the defendant had failed to appear, he was not required to be proceeded in exparte. The Court had to consider

the application seeking leave and then to proceed further. The procedure prescribed under Order XXXVII of the Code leaves no room for

proceeding in ex parte because sub-rule (3) of Rule 2 provides that after service upon defendant if he does not appear, the allegations of the plaint

are deemed to be admitted and decree is to be passed. When defendant enters appearance and files application seeking leave to defend, thereafter

absents, still some order for disposing of such application is required to be passed. The object and purpose of Order XXXVII, in effect, has been

a casualty, procedure prescribed has not been followed, which, in effect, has caused serious prejudiced to the defendant, therefore, judgment and

decree passed by the trial court is unsustainable.

For the stated reasons, it would be appropriate and apposite now to direct the trial court to decide the application seeking leave to defend and

then to proceed further strictly as per the procedure prescribed under Order XXXVII of the Code of Civil Procedure.

Appeal succeeds. Judgment and decree impugned dated 01.02.2010 is set aside, case remanded to the trial court with the direction to decide

the application seeking leave to defend the suit and proceed further thereon in accordance with Order XXXVII of the Code of Civil Procedure.

Parties to appear before the trial court on 25.06.2014. Trial court record be sent back forthwith along with copy of this judgment.