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Judgment
Tarlok Singh Chauhan, J.
OMP No. 493 of 2014
The applicants/defendants have filed this application under Order 8 Rule 2 read with Sections 148 and 151 of the Civil Procedure Code read along with Rule 2 of Chapter 4 of the H.P. High Court Original Side Rules, 1997 for recalling the order dated 09.10.2014 and to extend the time for filing written statement.
It has been submitted that though the defendants had been served in the case but the summons were not as per the Form No. 4 of sub rule 2(2) of Order 37 CPC and because of non-compliance of a mandatory condition, this suit could not be treated as a summary suit.
In reply to this application, the plaintiff has stated that there has been complete compliance of Order 37, Rule 2(2) of CPC as the notice of the civil suit was sent to the applicants/defendants on the prescribed form as provided under Order 37, Rule 2 CPC, which reads as under:
""2. Institution of a 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."
Order 37, CPC prescribes a strict and stringent procedure with reference to the particular class of suits 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, CPC.
Under Order 37, Rule 2(1), CPC a suit under the summary procedure may be instituted by presenting a plaint containing a specific averment to the effect that the suit is filed under Order 37, CPC and that no relief falling outside the ambit of the Rule had been claimed in the plaint with the inscription in the cause title that the suit is filed under Order 37 CPC. Order 37, Rule 2(2), CPC, states that the summons shall be in Form 4 in Appendix B. A reference to the same shows that it is a summons to cause an appearance to be entered for the defendant within ten days from the service thereof, in default of which the plaintiff will be entitled, on the expiry of a period of ten days, to obtain a decree for a sum not exceeding the sum mentioned therein. The summons further provides that if the defendant or defendants enter appearance, then a further summons for judgment will be served at the hearing of which, the defendant or defendants would be entitled to move the court for leave to defend the suit. The summons further proceeds to state that leave to defend the suit may be obtained if the court is satisfied that there is a defence to the suit on the merits. Under Order 37, Rule 2(3), CPC the defendant shall not defend the suit unless he enters appearance. Further if there is default in his entering appearance then, the plaint allegations shall be deemed to be admitted and the plaintiff shall be entitled to a decree for a sum not exceeding that mentioned in the summons together with interest and such other sums, and such a decree may be executed forthwith.
A careful reading of Order 37, Rule 2(1) to (3), CPC in the light of the prescribed form of summons shows that unless the defendant or defendants enter appearance within ten days of the service of summons, the other consequences mentioned under Order 37, Rule 2(3) CPC, would follow.
I have heard learned counsel for the parties and have gone through the records of the case carefully.
It is evident from the records that the summons issued to the applicants/defendants were not in Form No. 4 of Appendix-B and the same was mandatory as held by the Hon''ble Punjab and Haryana High Court in M/s Atma Tube Products Ltd. Vs. Steel Authority of India Ltd. . But this in itself would not vitiate the entire proceedings and convert the suit filed under Order 37 into a regular suit.
A similar question came up for consideration before a learned Single Judge of the Jammu and Kashmir High Court in O.N. Tikku Vs. Dr. Karan Singh, AIR 1989 J&K 25 , who after taking into consideration the fact that the opposite party had not been served through prescribed summons in Form 4 in Appendix-B as prescribed under Order 37, held that the notice being defective could not bind the defendant. It was thereafter held that now that the defendant had become fully aware about the provisions of Order 37 and had full knowledge of the case that he is required to meet and is further represented by a counsel, therefore, there was no need or requirement to issue fresh notice in Form 4 and it would be deemed now that the notice under Order 37 in Form 4 has been issued and received by him, upon which he has entered appearance within the prescribed period therein. Relevant observations read as under:
"15. In view of what has been said above, I accept the prayer of the defendant made in this CMP and condone the delay in entering his appearance in the Court. The defendant has now become fully aware about the provisions of Order 37 and has full knowledge of the case he has to meet. He is also represented by a counsel, and therefore, no fresh notice in Form 4 supra needs to be issued to him. It shall be deemed now that notice under Order 37 in Form 4 has been issued to him, and he has received the same, and also that he has entered his appearance within time prescribed therein. This shall dispose of CMP No. 846-A of 1986 only."
Taking cue from the judgment in O.N. Tikku''s case (supra), it can safely be concluded that the defendants have now become fully aware about the provisions of Order 37 and have full knowledge of the case they have to meet and therefore, there is no requirement of issuing fresh notice in Form 4.
Further the defendants are already represented by a counsel and have received the copy of the plaint, therefore, the suit shall henceforth be treated as a summary suit.
Now, that the suit has been treated as a summary suit, the prayer of the applicants/defendants for treating the suit as a regular suit or extending the time or recalling order dated 9.10.2014 cannot be allowed. The suit shall proceed strictly in accordance with the provisions of Order 37 CPC.
Accordingly the present application is disposed of in the aforesaid terms.
CMPMO No. 237 of 2014
This petition was tagged alongwith Civil Suit No. 4070 of 2013 as the interpretation of Order 37, Sub-rule (2) of Rule 2 CPC was involved in this petition. However, perusal of the petition alongwith the accompanying documents would show that the petitioner in fact has been served with a notice in Form No. 4 of Appendix-B as is evident from a copy of the summons appended with the petition as Annexure P-1.
That apart, the copy of the dishonoured cheque alongwith the memorandum attached thereto, has been appended with the petition which prima-facie establishes that the suit filed falls within the ambit of Order 37 Rule 2 and even the procedure as envisaged under the law has been followed.
Above all, the learned Court below has taken into consideration the provisions of Order 37 and granted leave to the petitioner to defend and has also afforded him an opportunity to plead his case. It has thereafter relied upon certain judgments including the one rendered by this Court in Picky Sharma Vs. Bhagwati Devi wherein it was held as under:
"Leave to defend - To be granted where defendant raises a defence which is substantial in nature and is not frivolous or vexatious - Leave has to be granted after hearing the parties - If defendant does not apply for leave to defend within 10 days of service of summons then plaintiff is entitled to a judgment in his favour forthwith - Leave to defend can be granted subject to such security on such terms and conditions as Court deems fit - Under Sub rule (7) of rule 3 Court is empowered to condone delay in filing application for leave to defend."
In the given facts and circumstances, I find no illegality, perversity or impropriety in the order dated 27.3.2014 passed by learned Civil Judge (Senior Division), Court No. 1, Ghumarwin, District Bilaspur. Resultantly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending application(s), if any, stands disposed of. Interim order granted by this Court on 14.8.2014 is vacated.