Point of law: O.7, R.11 as held by the Supreme Court in the case of P.V. Guru Raj Reddy (Supra) is a drastic measure and would be applicable only when there is no cause of action that arises. The conditions precedent for the exercise of power under O.7, R.11 have to be considered only if the averments read in the plaint as a whole do not disclose a cause of action and when the suit is barred. In other words, when reading the plaint it comes forth that where the suit is under valued or where there is an absence of cause of action or when the statement in the plaint indicates that the suit is barred or the plaint is not filed in duplicate, that resort can be sorted under O.7, R.11 of the Code

ORDER :

1. This is a Civil Revision Application filed by the original defendant u/s. 115 of the Code of Civil Procedure, 1908 (‘Code’ for short).

2. The applicant who was the original defendant is aggrieved by the order dated 6.7.2018 passed by the learned Judge, Small Causes at Rajkot in Summary Suit No. 472/2017 below Exh.13.

3. The facts in brief are as under:

(i) The respondent was the original plaintiff who moved the Small Causes Court by preferring Summary Suit No. 472/2017 under Order 37 of the Code. The case of the plaintiff respondent herein was that he had entered into an oral agreement with the defendant/applicant herein by which an amount of Rs. 7,00,000/- was advanced to the applicant-defendant for a period of 3-4 months. A cheque bearing No. 198516 dated 22.12.2015 was issued by the respondent-defendant in favour of the applicant, which the applicant failed to repay and therefore a summary suit was filed by the respondent to recover a sum of Rs. 7,00,000/- from the applicant.

(ii) The applicant filed application Exh.13 before the trial Court. The applicant-original defendant by filing application under Order 7 Rule 11 contended that Order 37 is a special provision and a summary suit is not maintainable. The application under O-7, R-11 that a summary suit under O-37, R-1(2)(b) was only maintainable on a written contract. The plaint admittedly said that it was an oral contract and, a summary suit was therefore not maintainable. The learned trial Judge by the impugned order dated 6.7.2018 rejected the application under O.7, R.11 on the ground that the suit was maintainable and held that the application of the applicant under O.7, R.11 did not fall within the clauses of O.7, R.11 (a) to (d). Aggrieved by this, the present revision has been filed.

4. Mr. Hemal Shah, learned advocate for the applicant would submit as under:

(i) He would submit on drawing the attention of the Court to the plaint that admittedly the suit was on oral contract and not a written one and, therefore, a summary suit was clearly not maintainable and, therefore, the application of the applicant under O-7, R-11 ought to have been entertained and the suit ought to have been dismissed.

(ii) In support of his submission, Shri Shah had, at the time of admission, relied on a decision of the Bombay High Court in the case of Ms. Purnima Jaitely vs. Ravi Bansi Jaisingh, AIR 2003 Bombay 494. He would reiterate, in support of his submission, that the Full Bench decision of the Bombay High Court in AIR 2003 Bombay 494 admittedly, a summary suit was not maintainable under Order 37. He would submit that a summary suit would lie on a settled account, on an acknowledgment of liability and on honored Cheque. He would therefore submit that admittedly when there was an oral contract, no summary suit would lie. In support of his submission, Mr. Shah also relied on the following decisions:

(a) Sushil Kumar Gauba vs. Adarsh Kumar Gupta, 2014 (9) Laws 101 (P&H).

(b) Commissioner of Income Tax vs. Deejay Hatcheries, 1994 (Law Suit) Bombay 859.

(c) Bhargavi Constructions and Another vs. Kothakaput Muthyam Reddy and Others of Hon'ble Supreme Court dated 7.9.2017 in Civil Appeal No. 11345 of 2017.

(d) Shamna B.V. The Manager, Hemambik Sanskrit High School, 2008 (Law Suit) Kerala 330.

(e) Paresh P. Patel vs. Atul J. Desai in S.C.A. No. 7838/2012 dated 8.1.2013 of the Gujarat High Court.

(iii) Mr. Shah would therefore submit that the trial Court failed to consider that O.37, R.1(2)(b)(i) provides that a suit for recovery of an amount would be maintainable only when it arises out of a written contract and in the present case, the suit was out of an oral contract. He would further submit that the trial Court failed to consider that suit upon a Cheque means a suit to recover money due on a Cheque which is dishonored. Such was not the case on hand and, therefore the suit was not maintainable.

5. Mr. Shashvat Shukla, learned counsel appearing for the respondent-original plaintiff would submit