2008 Supreme(Guj) 429

2009 (3) GCD 2164 (Guj)
Hon’ble Mr. Justice M.R. Shah
Satellite Television Asian Region Limited & Anr.
Versus
Kunvar Ajay Foods Pvt. Ltd.
Special Civil Application No. 11469 of 20061—Decided on 10/12/20082

Point in Issue :
Whether in cases where triable issues are involved, grant of leave to defend on condition of deposit of sum sustainable?

Headnote:Head Note :

       (a) Civil Procedure Code, 1908 (Central Act 5 of 1908) — Order 37, Rules (1)(b), 1(2), 2, 3 and 4(3) — Summary suits — Leave to defend — Granting on condition of deposit of specified sum — Sustainability — Finding of — Respective plaintiffs have filed summary suit under the provisions of the code claiming damage for defamation and for declaration and permanent injunction — The suit do not fall in any of the classes mentioned in the provision relating to the filing of the summary suit — Prima facie such suits are not maintainable as summary suits and the issue as to whether such a summary suit is maintainable or not can be said to be serious triable issue by itself — In the circumstances trial Court has materially erred in not granting unconditional leave to the respective original defendants — Court, therefore, set aside impugned orders passed by trial Court in not granting the unconditional leave to respective defendants and granting conditional leave directing them on condition to deposit specified sum by Court.

       Held :

       It is required to be noted that the respective suits in question are filed by the respective plaintiffs as Summary Suits under Order 37 of the Code of Civil Procedure claiming damages for defamation and for declaration and permanent injunction. [Para 17]

       Thus, it appears that the claim of the original plaintiffs in the respective suits do not fall in any of the classes mentioned in Sub-rule (2) of Rule 1 of Order 37 of the Code of Civil Procedure. The said claim of damages for defamation is neither on bills of exchange, Hundies, and Promissory Notes nor to recover the debt or liquidated demand in money payable by the defendants; on a written contract or on an encashment where sum sought to be recovered is a fixed sum of money or in the nature of debt other than the penalty, or; on a guarantee where the claim against the principal borrower is in respect of debt or liquidated demand only. Even it cannot be said that the suit is to recover a fixed sum of money, as what would be the damages is to be ascertained and/or adjudicated upon on leading appropriate evidence and therefore also it cannot be said that the aforesaid suits are to recover fixed sum of money and therefore, prima facie it appears that such suits claiming damages for defamation are not maintainable and/or the issue as to whether such a summary suit is maintainable or not, can be said to be a serious triable issue.

        [Para 20]

       Considering Order 37 Rule 2 Sub-rule 1 (b) of the Code of Civil Procedure, it appears that where other reliefs are sought in the plaint which does not fall within the ambit of Order 37 of the Code of Civil Procedure, Summary Suit under Order 37 of the Code of Civil Procedure is not maintainable. Thus, considering the above, when prima facie it appears that the Summary Suits are not maintainable at all and/or the issue as to whether for such relief claimed in the aforesaid suits, such Summary Civil Suits under Order 37 of the Code of Civil Procedure are maintainable or not, itself is a serious Triable issue, the learned trial Court has materially erred in not granting unconditional leave to the respective original defendants. It appears that the learned trial Court has not considered at all the defence raised by the original defendants with respect to the maintainability of such suit under Order 37 of the Code of Civil Procedure. [Para 21]

       Head Note :

       (b) Civil Procedure Code, 1908 (Central Act 5 of 1908) — Order 7 Rule 11 — Dismissal of suit — Application for — Not decided on ground of pending application for leave to defend — Court held that trial Court was not justified in not deciding the application for dismissal of suit on ground that such an application is not required to be decided before an application for leave to defend is decided — Said application can be decided even prior to deciding the application for leave to defend as once it is held that the suit is required to be dismissed as not maintainable there will not be any occasion thereafter to decide the application for leave to defend — Even looking to the purpose of the provision it is required to be decided at the earliest.

       Held :

       It is also required to be noted that even the application submitted by the defendants to dismiss the suit under Order 7 Rule 11 of the Code of Civil Procedure were pending, but the learned trial Court did not decide the same on the grounds that such an application is not required to be decided before an application for leave to defend. It appears that there also the learned trial Court has committed an error. Application under Order 7 Rule 11 of the Code of Civil Procedure is required to be considered and dealt with at any stage and even the same can be decided even prior to deciding the application for leave to defend, as once it is held that the suit is required to be dismissed on the ground that the same is not maintainable, there will not be any occasion thereafter to decide the application for leave to defend and/or summons for judgment. Even looking to purpose for which Order 7 Rule 11 of the Code of Civil Procedure is enacted, such application under Order 7 Rule 11 of the Code of Civil Procedure is required to be decided by the Courts at the earliest.

        [Para 22]

       Law Laid Down :

       Prima facie it appears that suits claiming damages for defamations are not maintainable as summary suit.