The Trial Court's failure to comply with procedural requirements in a summary suit resulted in an unsustainable judgment, necessitating remand for fresh consideration.

JUDGMENT :

1. Through the medium of this Regular First Appeal, the Appellants have challenged the Judgment and Decree dated 11th of April, 2022, passed by the Court of learned 4th Additional District Judge, Srinagar (hereinafter referred to as ‘the Trial Court’ for short), in a Civil Suit No. 39/2019 titled ‘Dr. Nazir Ahmad Dhar v. Rifat Jan Misger & Ors.’

2. The impugned Judgment and Decree has been assailed by the Appellants/ Defendants, inter alia, on the grounds that the same is not in accordance with law and has been passed without following the requisite procedure as prescribed under Order XXXVII of the Code of Civil Procedure (CPC); that the impugned Judgment and Decree was passed in a Suit which was barred by law of limitation, for the reason that the promissory note (Hundi), relied upon by the Respondent, as Plaintiff, was alleged to have been executed way back in the year 2005, whereas, the Suit was filed in the year 2019, when as a matter of fact, such a Suit could only be filed within a period of six years from the date of execution of the promissory note (Hundi); that the promissory note (Hundi), on which the Suit was based, was not filed as an original document with the Plaint and the Respondent, as Plaintiff, had filed an application for placing on record the original Hundi, relied upon by him, much after issuing Summons for Judgment, and this application had been objected by the Appellants, as Defendants.

3. It was further asserted that the Trial Court rejected the application seeking leave to defend, without deciding the application for taking on record the document and passed the impugned Judgment and Decree, as such, the course adopted by the learned Trial Court was strange; that the Trial Court has not adverted to any of the grounds urged by the Appellants/ Defendants, while refusing leave to defend and the leave has been denied without assigning any reason by passing a non-speaking Order, liable to be set aside; that the Plaintiff/ Respondent herein had failed to apply for summons for Judgment and had not submitted any Affidavit, as required by Order XXXVII of the Code of Civil Procedure, as such, there was no occasion to order for summons for Judgment nor summons for Judgment had been issued in the prescribed format. In this backdrop, it is averred that the Trial Court has failed to notice all these infirmities in the procedure and has passed the impugned Judgment and Decree, which is liable to be set aside.

4. Learned Counsel for the Appellants/ Defendants, while reiterating the assertions made in the memorandum of Appeal, has argued that the Civil Original Suit had been filed by the Respondent/ Plaintiff, in terms of Order XXXVII of the Code of Civil Procedure as a summary Suit on 25th of January, 2019 and a notice was issued to the Appellants/Defendants herein, whereafter, the Defendants, in response to the notice, had entered appearance in the Court and had given their addresses/ particulars; that the Suit filed by the Plaintiff was deficient in Court fee and the Trial Court had asked the Plaintiff/ Respondent herein to deposit the deficient Court fee; that the summons for Judgment were issued to the Appellants/Defendants without filing of Affidavit by the Respondent/Plaintiff in support of his case, which was a statutory requirement in terms of Order XXXVII of the Code of Civil Procedure; that the Appellants/Defendants, after causing their appearance before the Trial Court, had also filed Written Statement to the Suit and had taken many defences and denied the execution of the promissory note (Hundi) by them and that this note was a forged/ fake one; that this Written Statement filed by the Appellants/ Defendants was treated as an application to defend the Suit, on a motion by the Defendants.

5. It is further argued that the original promissory note had not been filed with the Plaint, but the Suit was decreed on the basis of a xerox copy thereof. He also argued that the Plaintiff/ Respondent had sought pe