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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Sheshnath Singh - Revisionist
Versus
Devendra Pratap Singh - Opposite Party
Civil Revision No. 126 of 2022
Decided On : 04-04-2023
Code of Civil Procedure, 1908 - Order XXXVII - Summary suit - Cheque dishonoured - Recover money due on several cheques - A perusal of order sheet shows that on Presiding Officer was not available because she was away on training - On next date, iPresiding Officer was on leave - Plaintiff filed a copy of postal track along with an affidavit, showing that defendant had been served with summons - Suit was directed to come up on vide order dated Vide order dated, service upon the defendant was held sufficient and suit was adjourned Later on, defendant put in appearance through Counsel and moved an application bearing paper no. 11C, saying that the learned Counsel had got information from his client over telephone, instructing him in the present suit - Learned Counsel urged that he needs a copy of the plaint, so that he can file a reply - e learned Trial Judge, finding that there was no dependable cause indicated in the affidavit 13C filed in support of the application 12C, rejected the same, denying the defendant leave to defend. It is against the order refusing leave to defend that the defendant-revisionist has come up. [Para 6]
Finding of Court : It must be remarked at this stage that Order XXXVII is a salutary procedure that could curtail much avoidable criminal litigation and bring quick justice, where necessary - However, for some reason State of Uttar Pradesh, this procedure has historically been under-utilized, and, if this Court may dare say, hardly ever utilized - It is for this reason that Presiding Officers of Subordinate Courts and members of the Bar are not very well acquainted with few basic technicalities of procedure, that govern suits under order XXXVII - Case is a classical example of lack of that acquaintance on both sides. - In opinion of Court, impugned order of learned Trial Judge, to the extent that she has proceeded to reject application for leave to defend suit on merits, is not sustainable - In opinion of this Court, order of learned Trial Judge rejecting the application for leave to defend on merits, ought to be substituted by an order rejecting that application as premature - Court is informed that plaintiff has already applied for summons for judgment, which have been served upon on, regarding which he has taken steps for service through registered post - Additionally, learned Counsel appearing for the defendant has also been served with summons for judgement in Form 4A before Trial Court.
Result : Revision is allowed.
JUDGMENT :
(J.J. Munir, J.)
1. This civil revision is directed against an order of Ms. Diksha Shree, learned Additional Civil Judge (Senior Division)-03, Allahabad dated 21.11.2022 rejecting the defendant-revisonist's application for leave to defend in a summary suit.
2. Heard Mr. Ashok Kumar Upadhyay, learned Counsel appearing for the revisionist and Mr. Tej Bhan Singh, learned Counsel appearing on behalf of the plaintiff-respondent.
3. The summary suit here instituted under Order XXXVII of the Code of Civil Procedure, 1908 (for short, 'the Code') is one to recover money due on several cheques, said to have been issued by the defendant in the plaintiff's favour, that were dishonoured on presentation. The summary suit was instituted on 13.09.2022. On 14.09.2022, summons in Form 4 of Appendix B to the Code were issued to the defendant for appearance. The summons were made returnable on 29.09.2022.
4. A perusal of the order sheet shows that on 29.09.2022, the Presiding Officer was not available because she was away on training. On the next date, i.e. 10.10.2022, the Presiding Officer was on leave. On 17.10.2022, the plaintiff filed a copy of the postal track along with an affidavit, showing that the defendant had been served on 23.09.2022 with the summons. The suit was directed to come up on 29.10.2022 vide order dated 17.10.2022. Vide order dated 29.10.2022, service upon the defendant was held sufficient and the suit was adjourned to 07.11.2022. Later on, on 29.10.2022, the defendant put in appearance through Counsel and moved an application bearing paper no. 11C, saying that the learned Counsel had got information from his client over telephone, instructing him in the present suit. The learned Counsel urged that he needs a copy of the plaint, so that he can file a reply. The suit was then adjourned to 01.11.2022 by the subsequent order that was passed on 29.10.2022. On 01.11.2022, the defendant moved an application marked as paper no. 12C along with an affidavit 13C, to which was attached a vakalatnama from the defendant, authorizing the learned Counsel to appear and defend. The application 12C sought leave to defend the suit. The grounds on which leave was sought were mentioned in the accompanying affidavit paper no. 13C. The affidavit largely disclosed for grounds the fact that the defendant was undergoing treatment at the District Hospital, Mau and advised bed rest. Some papers relating to the treatment were enclosed with the affidavit. The defendant denied the service of summons at his address and said that after coming to know about the institution of this suit, he had informed his learned Counsel, on the basis of which the learned Counsel had moved the application bearing paper no. 11C, the day he appeared.
5. It was further said in the affidavit that the defendant came over to Allahabad from Mau and moved the application bearing paper no. 12C seeking leave to defend. The plaintiff objected to both the applications bearing paper no. 11C and 12C. It was made out that the defendant was served with the summons on 23.09.2022. The plaintiff urged that on 29.10.2022, the defendant had appeared much beyond ten days of the service of summons for appearance, and, therefore, the suit ought to be decreed. It was also said that the application paper no. 11C was filed without a vakalatnama and beyond the statutory period of ten days, rendering it liable to be rejected. The suit was adjourned on 01.11.2022 to 07.11.2022 and it is on that date that the defendant applied for leave to defend. The plaintiff also said that the affidavit does not disclose any ground for leave to defend at all. The defendant has not denied the issue of the cheques in question that are the basis of the suit. The prayer, therefore, was that the application for leave to defend in any case ought to be rejected.
6. The learned Trial Judge, while dealing with the defendant's applications 11C and 12C, held that the defendant had not disclosed grounds for leave to d
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 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 court ruled that leave to defend a summary suit should be granted where defendants raise substantial defenses; however, failure to demonstrate a triable issue leads to dismissal.
Leave to defend in summary suits should be granted unless the defense is clearly frivolous or lacks substance, ensuring fair opportunity for defendants.
A defendant in a summary suit is entitled to leave to defend if they raise plausible triable issues, even if the defense is not strong.
The court emphasized that minor procedural delays can be condoned when reasonable explanations are provided, reinforcing the principle of procedural fairness in the legal process.
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