K. Panduranga Rao Naidu vs Kanteti Jagadeswari

Immaneni Panduranga Rao, J.—These two revisions are preferred against the orders passed by the 1st Addl. Subordinate Judge, Vijayawada in I.A.Nos. 1389 and 1390 of 1991 filed under Order 37 Rule 4 C.P.C. and under Order 9 Rule 7 C.P.C. for setting aside the dismissal order dt.26-2-90 in I.A.No. 469/90 and to restore the same to the file.

The facts leading to filing of the revision petitions are that the plaintiff filed a suit for recovery of balance of money due under three promissory notes dated 16-5-80, 1-1-81 and 11-7-85. Preceding the filing of the suit, the plaintiff issued a registered noticedt.16-8-89. It was returned unservedon24-8-1989. Thereafter the plaintiff issued another registered notice dt.23-9-89 demanding the balance due under the promissory notes. The defendant is said to have replied thereto admitting the consideration under the second and third promissory notes but pleading that the first promissory note dt.16-5-80 is supported by the consideration only to the extent of Rs. 10,000/-.

The plaintiff filed the suit on 24-11-89 invoking the summary procedure laid down under Order 37 C.P.C. After receipt of summons, the defendant filed his vakalat on 16-1-90. The plaintiff served on the defendant a summons for judgment in Form No. 4-A in Appendix ''B'' verifying the cause of action and the amount claimed and stated that in his belief there is no defence to the suit.

Because this is a suit filed invoking the summary procedure under Order 37 C.P.C. the procedure prescribed therein should be scrupulously followed. Order 37 Rule 3, Sub-clause (5) empowers the defendant within ten days from the service of summons of Judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit. On such application being filed, the Court has to decide either to grant leave to defend unconditionally or upon such terms as may appear to the court to be just.

As I observed already, when a special procedure is prescribed by the CPC in respect of suits based upon the promissory notes and other category of cases specified in Order 37 Rule 1 Sub-clause (2), that procedure should be scrupulously followed.

Since I.A.No. 469/90 for leave to defend was filed on 1-2-90 before the plaintiff served a summons of judgment in the required form, the learned Subordinate Judge has rightly held that I.A.469/90 is premature. Admittedly, no application was filed subsequent to 10-2-90 as required under Order 37 Rule 3 Sub-clause (5) C.P.C. within ten days from the service of summons for judgment seeking the leave of the court to defend the suit by disclosing the facts as may be deemed sufficient to entitle the defendant to defend the suit.

These are not the revisions preferred challenging the correctness of the order dated 26-2-90 in LA .No. 469/90. Even otherwise, from the sequence of the events referred to above, the dismissal of the said I.A. on the ground that it is premature is perfectly correct because by the date of filing of I.A.No. 469/90 the plaintiff has not served a summons for judgment on the defendant. The defendant not having filed the petition to leave to defend in strict compliance with the conditions laid down in Order 37 Rule 3, Sub-clause (5) C.P.C. he is not entitled for leave to defend the suit.

The filing of I.A.No. 1390/90 under Order 9 Rule 7 CPC considering the decree as an ex parte decree is misconceived because Order 37 Rule 4 is specifically provided to set aside the decree passed under Order 37 Rule 3 CPC. Order 37, Rule 4 CPC empowers the setting aside of the decree only under special circumstances. The petitioner does not disclose any special circumstances except stating that I.A. No. 469/90 was pending by the date of filing of the suit. As I mentioned already, that LA. is premature inasmuch as it was filed before the plaintiff has served on the defendant a summons for judgment as required in prescribed form and in the absence of filing any application, subsequent to the date of service of summons for judgment, the defendant is not entitled to pray for leave to defend the suit. The request of the learned counsel for the petitioner that LA. No. 469/90 should be restored to file and the learned Subordinate Judge should be directed to dispose of the same on merits, cannot be granted because it is contrary to the special procedure prescribed under Order 37 Rule 3 C.P.C. Both the C.R.Ps. are therefore dismissed. No costs.