ORDER

1. Petitioner has filed the present miscellaneous petition challenging order dated 13.8.2019 contained in Annexure-P/7. By said order, learned trial Court has held that case will be tried as regular suit and not as summary suit as complaint filed under section 138 of Negotiable Instrument Act, 1881 was dismissed, thereafter appeal was also dismissed. Therefore, case for recovery of money involved complicated questions. Suit has been registered as Class-B suit and procedure adopted is like in regular suit. Plaintiff has not raised any objection at time of appearance of defendant that civil suit is filed as a summary suit and, therefore, it was ordered that civil suit shall be heard as regular suit.

2. Petitioner/plaintiff submitted that he had filed the suit in format of summary suit under Order 37 of CPC. Trial Court ought to have issued notice to defendant in Form-4 of Appendix-B of CPC.

3. It is submitted by counsel appearing for petitioner that act of Court may not cause injury or harm to a party. He relied on the maxim of actus curiae neminem gravabit.

4. Counsel appearing for petitioner has relied on judgment reported in (2008) 8 SCC 505; Dr. Purushotama Reddy and another v. K. Sateesh, in para-9 it is held as under :--

“9. A suit for recovery of money due from a borrower indisputably is maintainable at the instance of the creditor. It is furthermore beyond any doubt or dispute that for the same cause of action a complaint petition under terms of section 138 of the Act would also be maintainable.”

5. Counsel appearing for respondent/defendant submitted that defendant will be prejudicially affected if suit is tried as a summary suit. As per the procedure of summary suit, defendant has to file an application for permission to defend the case. No such application has been filed. Notice was issued to respondent in Form 1 of CPC. Petitioner has not raised any objection initially and now he cannot raise any objection that suit ought to have been tried as a summary suit. Respondent will suffer adversely as limitation prescribed for filing an application for permission to defend the suit is already over. Trial Court has rightly passed the order that suit is to be tried as a regular suit and not as a summary suit because civil suit involved complicated questions. In view of same, he made submission that this miscellaneous petition be dismissed.

6. Counsel appearing for respondent submitted that miscellaneous petition has been filed after delay and same has not been explained. There is no error of jurisdiction in the order passed by the trial Court and procedure prescribed under Order 37, rule 3 (4) of CPC is not complied with, therefore, trial Court has rightly passed the order.

7. Counsel for respondent relied on judgment reported in 2001 SCC Online P & H 111 (Atma Tube Products Ltd. v. Steel Authority of India Ltd.). In the said judgment, it was held that in a suit which is filed as summary suit under Order 37 rules 2 and 3, it is mandatory to issue summons in format Form No.4 (Appendix-B). Since defendants were not served as per provision of Order 37 of CPC, suit was to be treated as a regular suit. Issuing of summons in Form-4 (Appendix-B) is mandatory so far as suit filed under Order 37 of CPC are concerned and summons were issued to defendant in regular suit. High Court directed the trial Court to treat the present suit as a regular suit. Trial Court cannot deprive the defendant to contest the suit.

8. Heard the counsel for petitioner as well as respondent.

9. Order 37 applies to the suit filed upon bill of exchange, hundi and promissory note. Suit was filed by petitioner to recover liquidated demand on basis of bill of exchange. Therefore, in a suit filed by petitioner Order 37 of CPC is attracted. Petitioner has instituted the suit making specific averments that suit is filed under Order 37 of CPC. Order 37, rule 2 of CPC was complied with by the plaintiff. After filing of suit, it is for the Court to issue the summ