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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Devashis Baruah
Sunanda Ram Choudhury, Son Of Late Nidhi Ran Choudhury – Appellant
Versus
Hemen Prasad Dutta, Son Of Late Lakhi Prasad Dutta – Respondent
JUDGMENT :
Devashis Baruah, J.
Heard Ms. A. Saikia, the learned counsel appearing on behalf of the petitioner and Mr. S. B. Prasad, the learned counsel appearing on behalf of the respondents.
2. The supervisory jurisdiction of this Court have been invoked to challenge the order dated 30.11.2023 passed in Summary Suit No.10/2023 as well as the subsequent order of rejection of the review petition dated 06.03.2024.
3. The learned counsel appearing on behalf of the petitioner submitted that taking into account that the suit was filed within the ambit of Order XXXVII of the Code of Civil Procedure, 1908 (for short ‘the Code’) without seeking a leave to defend, the question of permitting the defendant to file a written statement is beyond the provisions of Order XXXVII of the Code. In that regard, the learned counsel referred to the judgment of the Supreme Court in the case of Southern Sales and Services and Others Vs. Sauermilch Design and Handels GMBH reported in (2008) 14 SCC 457
4. Per contra, the learned counsel appearing on behalf of the respondent submitted that the respondent/defendant did not receive the copy of the summons and as such, sought for vacation of the order dated 04.11.
The court emphasized adherence to procedural rules in summary suits, highlighting that a defendant must seek leave to defend before filing a written statement under Order XXXVII.
Point of Law : Order of the learned Trial Judge rejecting the application for leave to defend on merits, ought to be substituted by an order rejecting that application as premature.
The striking off of a defendant's defence due to late filing of a written statement, despite court's extension, is unjustifiable, and such extensions are regarded as directory rather than mandatory, ....
Summary suit – If a reply or defence is allowed to come on record in a summary suit without Leave of Court then distinction sought to be maintained between a Suit normally instituted and Summary Suit....
Supervisory jurisdiction under Article 227 is limited to correcting gross errors; amendments post-trial are impermissible unless necessary to resolve issues, safeguarding respondent rights.
The main legal point established in the judgment is the interpretation and application of the provisions of Order XXXVII Rule 4 and Rule 3(4) of CPC regarding the service of summons for judgment in a....
The main legal point established in the judgment is that an order of rejection of plaint under Order 7 Rule 11 of the Code is amenable to the remedy of appeal, and therefore, the court dismissed the ....
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