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IN THE HIGH COURT OF RAJASTHAN
Pushpendra Singh Bhati, J.
Mahavir Chand Mehta – Appellant
Vs.
Shobha Jain – Respondent
C.W.P. No. 7386 of 2014
Decided On : 12-04-2018
SUMMARY SUIT - ORDER 37 CPC - WRONG NOTICE - WRITTEN STATEMENT - DECREE - SUMMARY PROCEDURE - JURISDICTION - REVISION - SECTION 115 CPC - SUMMARY PROCEDURE - ORDER 37 RULE 4 CPC - INTERPRETATION - COURT'S DISCRETION - PROCEDURE - FAIRNESS - CONSTITUTIONAL SAFEGUARDS - JUDICIAL REVIEW - WRIT PETITION - DISMISSAL.
Fact of the Case:
The petitioner filed a summary suit under Order 37 Rule 2 CPC against the respondent and sought a decree for a sum of Rs.10, 70,000/- with interest. The petitioner argued that the respondent had not complied with the provisions of Order 37 Rule 3(4) & 3(5) of CPC and therefore, the suit ought to have been decreed. The respondent contended that he could not be put in tight rigors of Order 37 as he was not served with the correct notices for summary proceedings.
Finding of the Court:
The court found that the petitioner had filed wrong process in Appendix B i.e. Process No.2 for general proceedings, therefore, the respondent had a bonafide chance of filing the written statement, which was filed slightly late but a cost has been imposed by the learned court below in the order impugned.
Issues: 1. Whether the respondent could be put in tight rigors of Order 37 when he was not served with the correct notices for summary proceedings? 2. Whether the court below erred in allowing the respondent to file a written statement and in not decreeing the suit?
Ratio Decidendi: 1. The court held that notices are the nerve of the process and the language of the notice is extremely important character as enshrined under the Civil Procedure Code and unless a person is warned or cautioned by the notice for a particular summary process under Order 37, he cannot be attributed with tight rigors of Order 37. 2. The court further held that the petitioner filed wrong process in Appendix B i.e. Process No.2 for general proceedings, therefore, the respondent had a bonafide chance of filing the written statement, which was filed slightly late but a cost has been imposed by the learned court below in the order impugned.
Final Decision: The writ petition was dismissed. The learned court below was directed to expedite the trial.
Pushpendra Singh Bhati, J.
The petitioner by way of filing this petition is claiming the following relief’s :-
"(a) by an appropriate writ, order or direction, the impugned order dated 08.7.2014 (Annex.1) passed by the learned trial court in pending Civil Suit No.276/2012 (old no.275/2010), titled "Mahavir Chand Mehta Vs. Smt. Shobha Jain' pending trial before the court of learned Additional District Judge No.6, Metropolitan, Jodhpur may kindly be quashed and set aside, consequently, the trial court may kindly be directed to decide the suit in accordance to provisions of Order 37 Rule 2 & 3 CPC., by allowing application of the petitioner-plaintiff.
(b) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
(c) Writ petition filed by the petitioner may kindly be allowed with costs."
2. The petitioner-plaintiff filed a summary suit under Order 37 Rule 2 CPC against the respondent-defendant and prayed for a decree of a sum of Rs.10, 70,000/- in total with interest @ 10% per annum. Counsel for the petitioner pointed out that erroneously wrong notices for general proceedings were sent to respondent-defendant instead of sending notices for summary proceedings. Counsel for the petitioner argued that the petitioner plaintiff had sought decree as the respondent had not complied with the provisions of Order 37 Rule 3(4) & 3(5) of CPC. The learned trial court has ordered the suit proceedings by taking written statement produced by the respondent on record by the impugned order. Counsel for the petitioner has harped upon the fact that the rigors of Order 37 are in a very tight legislative language, therefore, the respondents could not have been permitted to file his written statement and the suit ought to have been decreed.
3. Counsel for the respondent pointed out that as per Appendix-B, the petitioner has filed summons at Sr. No.2, which are for general proceedings and the same were issued by learned court below and for no fault of respondent he cannot be put in tight rigors of Order 37. Counsel for the respondent pointed out that the technical process of Order 37 would come into existence only if Appendix-B Summon No.4 was issued to the respondents. To strengthen his argument, counsel for the respondent relied upon the judgment of Hon'ble Andhra Pradesh High Court in Vasudev Chenoy Vs. T. Jagan Mohan, (1981) LawSuit(AP) 237, relevant partition whereof reads as follows :
"(5) These summons are plainly and wholly inappropriate to a suit filed under Order 37, civil Procedure Code. Order 37, rules 2 and 3 of Civil Procedure Code read thus: "2. Institution of summary suits.-A suit to which this order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain- (a) a specific averment to the effect that the suit is filed under this Order : (b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and (c) the following inscription, immediately below the number of the suit in the title of the suit, namely : " (Under Order 37 of the Code of Civil procedure, 1908 ). "
(1) The summons of the suit shall be in form No. 4 in Appendix B or in such other form as may, from time to time, be prescribed. (3) The defendant shall not defend the suit referred to in sub-rule (1) unless he en ers an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High court from time to time by rules made in that behalf and such decree may be executed forthwith. 3. Procedure for the appearance of defendant.-
(1) In a suit to whic
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