Once unconditional leave to defend is granted in a summary suit under Order 37 of the CPC, the court must proceed on merits as a regular suit; it cannot summarily decree the suit for non-payment of costs.

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE

and

HONOURABLE MR.JUSTICE J. L. ODEDRA

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Approved for Reporting Yes No

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CORAM:

HONOURABLE MR. JUSTICE A.Y. KOGJE

and

HONOURABLE MR.JUSTICE J. L. ODEDRA

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC” for short) against the judgment, order and decree dated 27.06.2024 by the 22nd Additional Senior Civil Judge, Vadodara in Special Summary Suit No.7 of 2020. By the impugned decree, the appellant-defendant was directed to pay an amount of Rs.1,73,45,028/- to the respondent-plaintiff with interest at the rate of 6% per annum.

1.1 The aforesaid amount is the share of the respondent-defendant in the compensation received when the ancestral land of the appellant and respondent were acquired for public purpose. The ancestral land being survey No.302, admeasuring 2681 Sq.Mtrs and survey No.307 admeasuring 7284 Sq.Mtrs of village Samiyala, Taluka: Baroda. It was a case of the respondent-plaintiff that the total compensation towards acquired land was Rs.5,20,350,85/- and the appellant and respondent were amongst the holders of the ancestral land, the respondent-plaintiff claimed to receive 33.33% of the compensation, which comes to the amount claimed in the suit.

2. It appears that two cheques of Rs.1,45,028/- and Rs.1,72,00,000/- were issued by the appellant-defendant to respondent-plaintiff which were dishonoured on account of insufficiency of funds which is a subject matter of criminal proceedings under Section 138 of the Negotiable Instrument Act. The respondent-plaintiff for the recovery of the aforesaid amount, issued a demand notice and upon failure to such demand notice, a summary suit under Order 37 of the CPC was filed and in response to, summons issued for summary suit, appellant filed their appearance and leave to defend vide Exh.9 and by an order dated 04.02.2023, an unconditional leave to defend was granted with the direction to pay a cost of Rs.1,000/- to the respondent-plaintiff.

3. Learned advocate appearing for the appellant has argued that once leave to defend is granted unconditionally, the only option for the Civil Court is to proceed on merits and decide the suit however, in the present case, despite leave to defend being granted, the Civil Court has once again proceeded under the provisions of Order 37 of the CPC and pronounced the judgment. It is argued that the pronouncement of judgment is a step after the summons for judgment for which, summon has to be issued in proforma to the defendant, which in the facts of the present case, is not done.

3.1 It is submitted that the purported application for summons for judgment Exh. 31A is a subsequently got up application as from the Rojkam, after Exh.31, which was for the purpose of placing on record certain relevant documents, the list of documents produced therewith have been successively numbered as Exh.32, 33 owards, which was done on the same day and therefore, as a cover for the application for summons for judgment, Exh.31A was introduced in between.

3.2 Learned advocate has argued to further emphasise on the unreliability of the exhibits, is the exhibit number given to the impugned judgment itself. The certified copy of the j