1. Present Civil Revision Application under section 115 of the Code of Civil Procedure has been preferred by the petitioners - original plaintiffs to quash and set aside the impugned order passed by the learned Small Causes Court at Ahmedabad in Civil Miscellaneous Application No.352 of 2002 in Summary Suit No.6639 of 1999, by which the learned trial court has allowed the said application submitted by the respondent herein - original defendant submitted under Order 37 Rule 4 of the Code of Civil Procedure and has quashed and set aside the judgement and decree passed in Summary Suit No.6639 of 1999 dtd.28/7/2000 and has permitted the original defendant to appear and defend the suit.
2. Facts leading to the present Civil Revision Application, in nutshell, are as under :-
3. That the petitioners herein - original plaintiffs instituted Summary Suit No.6639 of 1999 against the respondent herein - original defendant under Order 37 of the Code of Civil Procedure for recovery of Rs.1,42,207/-. It appears that the learned trial court passed ex-parte judgement and decree dtd.28/7/2000 in the aforesaid Summary Suit No.6639 of 1999, by observing that though the defendant was served the Summons by affixing, nobody has appeared on behalf of the defendant and even application for leave to defend the suit was also not submitted and therefore, the learned trial court passed the judgement and decree.
4. Having served with the Jangam Warrant in execution, respondent herein submitted an application being Civil Miscellaneous Application No.192 of 2001 in the City Civil Court at Ahmedabad under Order 37 Rule 4 of the Code of Civil Procedure to quash and set aside the ex-parte judgement and decree by submitting that the Summons upon the defendant was not duly served and therefore, it was requested to quash and set aside the judgement and decree passed in Summary Suit No.6639 of 1999 and permit the defendant to appear and defend the suit. It appears that in the meantime, the jurisdiction to decide the Summary Suit came to be transferred to the Small Causes Court at Ahmedabad and therefore, the aforesaid Civil Miscellaneous Application No.192 of 2001 came to be transferred to the Small Causes Court at Ahmedabad which was renumbered as Civil Miscellaneous Application No.352 of 2002. That the learned Small Causes Court at Ahmedabad by the impugned order dtd.25/3/2003 has allowed the said application and has quashed and set aside the ex-parte judgement and decree passed in Summary Suit No.6639 of 1999 and has restored the suit and permitted the petitioner to appear and defend the suit. Being aggrieved by and dissatisfied with the impugned order passed by the learned Small Causes Court at Ahmedabad in quashing and setting aside the ex-parte judgement and decree passed in Summary Suit No.6639 of 1999, petitioners herein - original defendants have preferred the present Civil Revision Application.
5. Heard the learned advocate appearing on behalf of the respective parties at length.
6. Considering the fact that the impugned order passed by the learned trial court is a non-speaking and non-reasoned order and nothing has been discussed by the learned trial court as to how the learned trial court has come to the conclusion that the Summons of the Summary Suit No.6639 of 1999 was not duly served upon the defendant, there is a broad consensus between the learned advocates appearing on behalf of the respective parties to quash and set aside the impugned order and remand the matter to the learned trial court to decide the said application afresh in accordance with law and on merits and thereafter the learned trial court to pass a speaking and reasoned order and the learned advocates appearing on behalf of the respective parties do not invite further reasoned order while quashing and setting aside the impugned order and remanding the matter to the learned trial court.
7. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties recorded hereinabove, this court is not assigning further reasons and not passing a reasoned order while quashing and setting aside the impugned order and remanding the matter to the learned trial court. However, suffice it to say that even this Court is also of the opinion that the impugned order passed by the learned trial court is absolutely a non-speaking and non-reasoned order, which cannot be sustained.
8. In view of the above and for the reasons stated above, the impugned order passed by the learned Small Causes Court No.9, Ahmedabad in Civil Miscellaneous Application No.352 of 2002 in Summary Suit No.6639 of 1999 is hereby quashed and set aside and the matter is remanded to the learned Small Causes Court to decide the said application submitted under Order 37 Rule 4 of the Code of Civil Procedure afresh, in accordance with law and on merits and after giving an opportunity to both the sides and to pass a speaking and reasoned order. It is made clear that this Court has not expressed any opinion in favour of either of the parties and it is for the learned trial court to pass an appropriate order on the said application in accordance with law and on merits, as aforesaid. In the facts and circumstances of the case, the learned trial court is directed to decide and dispose of the aforesaid application on remand, as aforesaid, at the earliest but not later than SIX MONTHS from the date of receipt of the present judgement and order. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.] rafik Top