The main legal point established in the judgment is that the availability of a statutory remedy of appeal against the order of rejection of plaint under the Code of Civil Procedure rendered the instant petition under Article 227 of the Constitution of India not maintainable.

JUDGMENT

Manjari Nehru Kaul, J. - The instant revision petition has been preferred under Article 227 of the Constitution of India, for setting aside of order dated 09th March, 2022 (Annexure P-3), passed by Addl. Civil Judge (Sr. Divn.), Chandigarh, vide which, application filed under Order 7 Rule 11 of the Code of Civil Procedure (hereafter called as 'Code') for rejection of plaint in a summary suit, by the respondent-defendant, was allowed.

2. It would be apposite to give a brief sequence of events leading to the filing of the instant revision petition by the petitioners, who are plaintiffs before the Court below. Parties hereinafter shall be referred to by their original positions before the Court below.

3. Plaintiffs, who are practicing Advocates, filed a summary suit under Order XXXVII of Code for grant of a decree for recovery of Rs.49,66,510/- (i.e. Rs. 10,11,900/- towards plaintiff No.1 and Rs. 39,54,610/- towards plaintiff No.2) along with interest pendente lite @ 12% p.a., during the pendency of the suit and future interest @ 12% p.a. till its actual realization, along with costs and legal fee dues from the defendant for various cases contested on its behalf. It has been pleaded that notice in the aforementioned suit filed by the plaintiffs/petitioners was issued to the defendant/respondent on 26.09.2019. Summons were served upon the defendant on 23.10.2019, however, the defendant failed to put in appearance in the Court within the stipulated 10 days, as envisaged under Order XXXVII Rule 3(1) of Code. Thereafter, statutory summons for judgment under Order XXXVII Rule 3(4) of Code were served upon the defendant on 03.01.2020. Application for leave to defend was required to be filed by the defendants within 10 days as per the provisions of Order XXXVII Rule 3(5) of Code, however, they failed to file any application for leave to defend within the statutory period of 10 days. Instead, they filed an application under Order 7 Rule 11 of Code on 23.12.2021, seeking rejection of the plaint on the ground that the suit did not fall within the ambit of summary suit as contemplated under Order XXXVII Rule 1 (2) of Code. The said application was allowed vide impugned order dated 09.03.2022 and the plaint rejected. Hence, the instant revision petition.

4. At the outset, a pointed query was put to the learned senior counsel for the petitioners qua the maintainability of the instant revision petition since a statutory remedy of appeal against the order of rejection of plaint is provided for and was available to him. On the query put, learned senior counsel submitted that the trial Court had on the face of it committed grave illegality while passing the impugned order. He submitted that statutory summons for judgment was served upon the defendant on 03.01.2020, as per Order XXXVII Rule 3(4) of Code and hence, the defendant/respondent was required to file an application for leave to defend within 10 days i.e. by 13th January, 2020, as provided for under Order XXXVII Rule 3(5) of Code. However, the defendant failed to file an application for leave to defend within the statutory period of 10 days and hence, on this ground alone, the suit was liable to be decreed forthwith as per the provisions of Order XXXVII Rule 3(6)(a) of Code. Therefore, the trial Court fell in error while failing to exercise its jurisdiction in not passing a decree immediately on the lapse of 10 days.

5. Learned senior counsel for the petitioners further contended that application under Order 7 Rule 11 of Code was not maintainable in a suit filed under Order XXXVII of Code. He submitted that Order XXXVII of Code was a complete code in itself and thus, the procedure provided therein could not be deviated from and had to be strictly complied with. After putting in appearance, the defendant has to file an application for leave to defend and on doing so, only thereafter he could be permitted to raise all the defenses be available to him and permissible under law. It was thu