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1992 JLJ 434
V.S. Kokje, J.
Rameshchandra Jaiswal and others v. Central Bank of India and another
Civil Revn. No. 131 of 1991; against the order of Shri O.P. Mandloi, 1st Additional District Judge, Shajapur, passed in Civil Suit No. 17-B of 1990;
Decided on 12.3.1992.
From a perusal of subd`rules 4,5 & 6 of Rule 3 of Order 37 it is clear that the entire action is based on summons for judgment. If summons for judgment is not issued as required by Subd`rule 4, there is nothing on the basis of which the defendant could ask for leave to defend and there is nothing on the basis of which the Court could grant judgment. The provisions are, therefore, clearly mandatory and in fact the summons for judgment is a basis to any judgment which may be pronounced under Order 37 C.P.C. If there is no affidavit verifying the cause of action and the amount claimed and stating that in plaintiff‘s belief there is no defence to the suit, there is nothing for the-defendant to defend against and there is nothing against which leave to defend could be asked for. [Para 7
(2) Interpretation of Statutes -- whether a provision of law is mandatory or directory -- ascertainment of -- object and consequences thereof.
The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it one way or the other. If the object of the enactment will be defeated by holding the same directory, it will be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. "Principles of Statutory Interpretation" by Justice G.P. Singh relied on. [Para 4
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V,S, Kokje, J, -- 1. This revision petition is against the refusal of grant of leave to defend under Order 37 C.P.C. Shri Khan learned counsel for the applicants submits that a perusal of the record would show that the provisions of order 37, Rule 3 C.P.C. were not followed by the trial Court. According to him, there was no occasion for the defendant to apply for leave to defend, in absence of the plaintiffs serving on the defendants a summons for judgment in form 4-A in Appendix B, supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there was no defence to the suit. According to him (Shri Khan) the defendant cannot be punished for having applied for leave to defend without insisting on the compliance with sub-rule 4 of Rule 3 of Order 37 C.P.C.
2. Shri A.S. Kutumbale learned counsel for the non-applicants submits that the applicant himself is responsible for the situation he found himself in now.
According to him the applicant entered appearance and filed an application for leave to defendant without waiting for the plaintiff serving a summons for judgment on him as required by sub-rule 4 of Rule 3 of Order 37 C.P.C. Learned counsel submits tha in the circumstances of the case, if the Court dispensed with the service of summons for judgment it cannot be said that it committed to any illegality or even irregularity.
3. Having heard the learned counsel for the parties and having perused the record of the case, I find that this application for revision has to be allowed.
4. The suit was filed on 20-12-90. On the next date i.e. 21-12-90 a summons was directed to be issued for 27-2-91. On 11-1-91 defendants 1, 2and 4 entered appearance by filing wakalatnama. The same day the applicant applied for leave to defend. On 27.2.91 a copy of the application was given to the plaintiff's counsel along with a copy of the affidavit and on the plaintiff's asking for time to reply the case was adjourned to 9- 3-91, on which date the reply to the application was filed by the plaintiff and the case was adjourned for arguments on the application for leave to defend. Ultimately, on 1-4-91 the Court passed the order and rejected the application for leave to defend on merits by the impugned order. The Court appeared to be fully aware of the situation that the provisions of serving summons for judgment on the defendant were not followed in the case and observed in the order that as the application for leave to defend was presented by the defendant, there was no need to serve a summons for judgment on him. The view taken by the Court appears to be on the basis that the provisions for serving of summons for judgment on the defendant are directory and not mandatory. A detailed discussion on the topic can be found at page 233 onwards of the 'Principles of Statutory Interpretation' by Justice G.P. Singh - Fifth Edition 1992. H has been observed by the learned author on the basis of several English and Indian authorities that no universal rule can be laid down to distinguish mandatory provisions from directory provisions, and the question as to whether a provision is mandatory or directory, depends upon legislative intent and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it one way or the other. For ascertaining the real intention of the legislature the Court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other. If the object of the enactment will be defeated by holding the same directory, it will be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object
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