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Gujarat High Court
Judgename :J.M.Panchal
SUBHSAGAR ENTERPRISES - Appellant
Versus
J.K.SYNTHETICS LIMITED - Respondent
C.R.A. 513 of 1997
Decided On : 05/07/1997
The application for setting aside ex parte decree is filed on June 4, 1992. Thus, for a period of about 8 months, the petitioners did not care to make inquiry as to whether application for leave to defend the suit which was already prepared on September 15, 1991, was in fact submitted before the Court or not or what was the progress of the suit.
The petitioners have neither pleaded in the application for setting aside ex parte decree nor in the memorandum of present revision application that because of their weak financial condition they are not in a position to deposit Rs. 3,00,000/- in the Court. It may be mentioned that ex parte decree for a sum of Rs. 50,20,770.86 together with interest and cost was passed by the Court on September 26, 1991 and the Court was considering the question of setting aside the same in the month of March 1997. Under the circumstances, direction requiring the petitioners to deposit Rs. 3,00,000/- cannot be termed as onerous or unreasonable so as to call for interference of the Court in the present revision application which is filed under Sec. 115 of the Code of Civil Procedure.
[Para 8]
(b) Advocates Act, 1961 - Negligence of lawyer - Cannot be treated as negligence of client - But in the instant case petitioner-defendant was also found equally negligent.
The law, as it stands today is that the negligence of the lawyer cannot be treated as negligence of client. However, in this case, the petitioners were also equally negligent, and, therefore, the decision rendered in the case of Bank of India (Supra) is not applicable to the facts of the present case. In the said case, after service of summons, the defendants had engaged advocate, but no appearance in the Court was entered at all by the advocate.
[Para 8]
(c) Civil Procedure Code, 1908 - Order 9, Rule 13 - Order 37, Rule 4 - Setting aside of ex parte decree - Whether leave to defend should be granted - Not compulsory - Court may in the facts and circumstances grant leave to defend.
The word "or" is normally disjunctive and "and" is normally conjunctive, but at times they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context. If the interpretation as suggested by learned Counsel for the petitioners is accepted it will stultify the scheme of Order XXXVII as well as Chapter XI of Ahmedabad City Civil Courts Rules, 1961 and would make other interrelated provisions otiose or devoid of meaning. Literal construction canvassed by learned Counsel for the petitioners is bound to defeat the manifest object and purpose of Order XXXVII CPC. The term, "if it seems reasonable to the Court so to do" immediately following the term "may give leave to the defendant to appear to the summons and to defend the suit" appearing in Rule 4 of Order XXXVII also makes it clear that the kind of leave which may be granted to the defendant by the Court while setting aside decree would vary from facts to facts, and, therefore, it would be reasonable to read the word "and" appearing in term "may give leave to the defendant to appear to the summons and to defend the suit" as "or" to give effect to the manifest intent purpose and object of Order XXXVII.
[Para 7]
(d) Interpretation of statute - Order 37 Rule 4 - Words `and `or - Word `and be read as `or.
Having regard to the scheme of Order XXXVII the word "and" appearing in the term "may give leave to the defendant to appear to the summons and to defend the suit" will have to read as "or" to give effect to the legislative intent.
[Para 7]
(e) Ahmedabad City Civil Court Rules, 1961 - Rules 142 to 148 - Civil Procedure Code, 1908 - Order 36 - Impugned Rules are inconsistent with amended Rules of Order 36.
To a limited extent, Rules 142 to 148-A of the Ahmedabad City Civil Courts Rules, 1961, are inconsistent with the amended Rules of Order XXXVI CPC.
[Para 6-A]
( 1 ) THIS is a revisional application under S. 115 Civil procedure Code by the defendants against the order passed by the learned Judge of city Civil Court setting aside an ex parte decree passed against them on their depositing in Court a sum of Rs. 3,00,000. 00 within the time prescribed by the order. The petitioners who are original defendants have been sued by the respondent for price of goods supplied to the petitioners. The suit was filed as a Summary Suit under Order 37 C. P. C. read with Rule 142 of Ahmedabad City Civil Courts Rules, 1961 to recover a sum of Rs. 50,20,770-86 with interest and cost. On service of the summons of the suit, the petitioners entered an appearance through learned pleader shri B. A. Surti. The respondent thereafter, served on the petitioners a summons for judgment in prescribed form on April 11, 1991. Thereupon the matter was posted for hearing on May 2, 1991. It is the case of the petitioners that they had determined the appointment of learned pleader Shri Surti and appointed learned Advocate Mr. S. J. Desai to act on their behalf. However, on May 2, 1991, learned pleader Shri b. A. Surti as well as learned Counsel Shri S. J. Desai submitted separate applications before the Court seeking adjournment in the matter to enable the petitioners to submit application seeking leave to defend the suit. In view of the request made by the learned Advocates, the suit was adjourned to May 5, 1991. On that day, learned advocate Shri S. J. Desai submitted an application and prayed the Court to adjourn the matter to enable the petitioners to file application seeking leave to defend the suit. The Court, therefore, adjourned the matter on September 26, 1991. On september 26, 1991, the suit was listed for hearing on the Board and the name of learned Advocate Mr. B. A. Surti was notified as Advocate appearing on behalf of the petitioners. Neither Shri Surti nor Shri S. J. Desai nor the petitioners remained present in the Court on September 26, 1991. Under the circumstances, hearing of summons for judgment took place and the Court passed the decree against the petitioners.
( 2 ) ON June 4, 1992, the petitioners submitted an application under Order 37 rule 4 C. P. C. and prayed the Court to set aside ex parte decree. The respondent resisted the application by filing reply at Exh. 18. It was inter alia claimed that no special circumstances were made out for setting aside the ex parte decree, and, therefore, the application was liable to be dismissed.
( 3 ) THE learned Judge of the City Civil Court found that the appointment of learned pleader Mr. B. A. Surti had not been determined with the leave of the Court by a writing signed by the petitioners or the pleader nor learned Counsel Mr. S. J. Desai had filed his appearance, and, therefore, no error was committed by Registry in mentioning name of learned Advocate Mr. B. A. Surti as Advocate appearing for the petitioners. However, the learned Judge noticed that the learned Advocate appearing for the respondent knew well that authority conferred upon learned pleader mr. Surti, to act, plead and appear was withdrawn and Mr. S. J. Desai learned advocate was appointed by the petitioners to act on their behalf, but that fact was not brought to the notice of the Court when summons for judgment was taken up for hearing. Under the circumstances, the learned Judge concluded that special circumstances were made out by the petitioners for setting aside the ex parte decree. In view of this conclusion, the learned Judge set aside ex parte decree by order dated March 6, 1997, passed below Exh. 1 in Civil Misc. Application No. 393 of 1992. While setting aside the ex parte decree dated September 26, 1991, rendered in Summary Suit No. 693 of 1991, the learned Judge has directed the petitioners to deposit a sum of Rs. 3,00,000. 00 and file application for leave to defend the suit within the time prescribed in the order. The direction to the petitioners to deposit a su
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