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HIGH COURT OF CALCUTTA
P. B. Mukharji
AMBALAL PURUSOTTAMDAS AND CO. - Appellant
Versus
JAWARLAL PURUSOTTAM DAVE - Respondent
Suit 886 Of 1953
Decided On : MAY 22, 1953
ORDER 37, CIVIL P. C. - CONSTITUTIONALITY - NATURAL JUSTICE - PROMISSORY NOTE - INTERPRETATION - APPLICABILITY OF SUMMARY PROCEDURE - [ORDER 37, CIVIL P. C., SECTION 4, SECTION 13, NEGOTIABLE INSTRUMENTS ACT] - The Court held that Order 37, Civil P. C. is not unconstitutional and does not infringe Article 14 of the Constitution. It does not violate the principles of natural justice and is not an unreasonable law within any constitutional prohibition. However, the document in question, though resembling a promissory note, is not a promissory note within the meaning of Rule 2 in Order 37, Civil P. C. as the payee is not certain. Therefore, the summary procedure under Order 37 is not applicable.
Fact of the Case:
The plaintiff filed a suit under Order 37, Civil P. C. for recovery of a sum of Rs. 19,129-12-6 as principal and Rs. 500/- as interest due on a promissory note dated 17-4-1952. The defendants challenged the constitutionality of Order 37, Civil P. C. and argued that the promissory note was not a genuine negotiable instrument.
Finding of the Court:
The Court held that Order 37, Civil P. C. is not unconstitutional and does not violate the principles of natural justice. However, the document in question, though resembling a promissory note, is not a promissory note within the meaning of Rule 2 in Order 37, Civil P. C. as the payee is not certain. Therefore, the summary procedure under Order 37 is not applicable.
Issues: 1. Whether Order 37, Civil P. C. is unconstitutional and violates the principles of natural justice? 2. Whether the document in question is a promissory note within the meaning of Rule 2 in Order 37, Civil P. C.?
Ratio Decidendi: 1. Order 37, Civil P. C. is not unconstitutional and does not violate the principles of natural justice. It is based on a reasonable and justifiable classification of courts and does not infringe the Constitutional guarantee of equality before the law or equal protection of the laws. 2. The document in question, though resembling a promissory note, is not a promissory note within the meaning of Rule 2 in Order 37, Civil P. C. as the payee is not certain. Therefore, the summary procedure under Order 37 is not applicable.
Final Decision: The Court granted leave to the defendants to appear and defend the suit and to file the written statement within one week from the date of the supply of the copy of the plaint. Cross order for discovery within a fortnight from thereafter, inspection within a week following and the suit, will appear as a short cause on the prospective list on the last Friday in July next. The costs of this application will abide the result of the suit.
( 1 ) THIS is an application by the defendants for leave to appear and defend this suit which has been instituted by the plaintiff under Order 37, Civil P. C. The summons was taken out on 30-3-1953.
( 2 ) THE suit is one for the recovery of a sum of Rs. 19,129-12-6 as principal and Rs. 500/- as interest due on a promissory note dated 17-4-1952.
( 3 ) MANY interesting and important points have been raised in this application. The defendants contend first that Order 37, Civil P. C. is 'ultra vires' the Constitution and is against the principle of natural justice. The next point taken is that the promissory note in this case is not really a promissory note because it is endorsed on an account book of the plaintiff and also because the language is not really the language of the usual promissory note. On merits, however, there is very little defence except some agreement is pleaded in the presence of one Doyalal Dave No. 24/25, Rup Chand Roy Street, Calcutta, by which it is said that the. defendant firm would pay the sum of Rs. 16,129-12-6, by ten annual instalments. It is said that the defendants carry on business as members of a joint Hindu family under the name and style of Ram Sankar Purushottam Dave. There is no supporting affidavit, however, of Doyalal Dave, and the reason given is that he is in his native place laid down with Typhoid.
( 4 ) THE argument that Order 37, Civil P. C. is unconstitutional is based on the contention that the defendants have no right to be heard in these suits. It is argued then that this is against the principle of natural justice. It is also challenged on the ground that Order 37 dispenses with even the proof which an ordinary plaintiff litigant is required by Court to produce before even an ex parte decree is made in his favour. The complaint on this branch of the argument is against the provision where Order 37 Rule 2 (2) says that If no leave is taken within the period mentioned, the allegations in the plaint are deemed to be admitted. The unreasonableness of such a law is pointed out by emphasising the fact that no copy even of the plaint, as in other suits, accompanies the summons in a suit under Order 37 which is served on the defendant. In this case it must be remembered that the summons is only endorsed with the copy of the promissory note or any other negotiable instrument upon which the suit is filed stating the amount due on such note or instrument.
( 5 ) RIGHTS to any particular legal procedure in civil cases or a particular kind of proof in civil suits, except in so far as they come within the ambit of Article 14 of the Constitution of India are not the express concern of the Constitution in any of its articles, and should not be confused with the safeguards provided by the Constitution for protection of life, liberty and property. Article 14 of the Constitution is the only relevant Article which needs to be examined to test the argument that Order 37, Civil P. C. is unconstitutional. That Article states one of the fundamental rights order the Constitution. That fundamental right is equality before the law or the equal protection of the laws within the territory of India. Reduced, therefore, in terms of conflict with this constitutional provision, the applicant's argument is recast in the following way.
( 6 ) ORDINARILY, in a civil suit a defendant has a right to appear and defend without having to obtain any leave from the Court. He claims it as a matter of right to appear and defend himself. A discrimination is, therefore, said to be made in cases of suits under Order 37, Civil P. C. where such right is denied to the defendants in these suits because the law stipulates that such defendants must first obtain the leave of the Court to appear and defend. It is, therefore, said that his law of procedure creates inequality among defendants in different suits. It is also said on the very same ground that there is no equal protection of laws for the defendants in d
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