1. This is defendant's revision against an order dated 10.11.2014 passed by Civil Judge (Sr. Div.), Room No.14, Allahabad in Suit No. 1014 of 2012 (hereinafter referred to as the suit) by which application no. 51 Ga moved by the defendant-revisionist, under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code), to allow the defendant to cross-examine the plaintiff's witness and argue the matter on legal points, has been rejected by the court below. The court below rejected the said application on the ground that the suit was a summary suit wherein the leave to defend was granted on a condition which the defendant failed to fulfill therefore the defendant was entitled to judgment forthwith, under Order XXXVII Rule 3 (6)(b) of the Code, and as such the defendant had no right to cross-examine the plaintiff's witnesses or to address the Court in defense.
2. The question that arise for adjudication in this case is that, whether in a summary suit, under Order XXXVII of the Code, where the defendant has been granted leave to defend on a condition and that condition has not been fulfilled, would the defendant still have a right to cross examine the plaintiff's witness or not.
3. Briefly stated the facts of the case are that the plaintiff-respondent was awarded construction works by the defendant/University. In respect of payment for the said works, according to the plaintiff, a Memorandum of Understanding dated 19.12.2006 was entered into between the plaintiff and the defendant wherein both parties agreed that the total value of the work executed by the plaintiff was of Rs.26,32,72,391/- and it was agreed that after deducting the payment already made to the plaintiff, the balance would be paid by the defendant to the plaintiff in three installments. The suit, under Order XXXVII of the Code, was instituted against the defendant-revisionist, claiming that after deducting the amount already paid by the defendant-University, as per Memorandum of Understanding dated 19.12.2006, the plaintiff was entitled to receive a sum of Rs. 4,69,00,751/- besides interest at the rate of 12% per annum with effect from 29.08.2009. In the suit, the defendant-revisionist entered an appearance and upon service of the summons for judgment, applied for leave to defend. The trial court, by its order dated 25.07.2013, granted unconditional leave to defend subject to filing of written statement by 29.08.2013. Pursuant to the order of the trial court, a written statement was filed. However, against the order dated 25.07.2013, the plaintiff filed Civil Revision No. 380 of 2013 before this Court. The said revision was partly allowed by order dated 23.09.2014 thereby making the leave to defend conditional on: (a) deposit of 50% of the total amount, as claimed by the plaintiff in the suit, in cash; and (b) furnishing adequate security for the remaining half to the satisfaction of the court below, within six weeks from the date of the order passed by the revisional court. Against the order of this Court dated 23.09.2014, the defendant filed a Special Leave Petition before the Apex Court. The Special Leave Petition was dismissed by order dated 15.12.2014. However, the time for deposit of 50% of the total amount by cash as well for furnishing security of the remaining half was extended by another two weeks from the date of the order passed by the Apex Court. In the meantime, during the pendency of Special Leave Petition before the Apex Court, on 10.11.2014, vide application no. 51 Ga, the defendant sought cross-examination of the plaintiff's witness as also liberty to address the court on legal points, which was rejected by the impugned order by placing reliance on clause (b) of sub rule (6) of Rule 3 of Order XXXVII of the Code. It is not in dispute that even within the extended time granted by the Apex Court the condition imposed by this Court for granting leave to defend was not fulfilled by the defendant.
4. I have heard Sri Ravi Kant and Sri J. Nagar, learned Senior Counsels, assisted by Sri Amit Negi, for the revisionist; and Sri Rajesh Kumar Singh for the plaintiff-respondent.
5. Assailing the impugned order, on behalf of the defendant-revisionist it was submitted that the Court below has wrongly interpreted the provisions of Order XXXVII Rule 6 (b) of the Code by considering it to be at par with Order XXXVII Rule 2 (3). It was submitted that the deeming provision of Order XXXVII Rule 2 (3) of the Code, which provides that on failure of the defendant to enter an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree, would come into play only when the defendant fails to enter an appearance. But where the defendant had entered appearance, there would be no deemed admission and therefore the plaintiff would have to prove his case by ordinary mode and in such a case the evidence led on behalf of the plaintiff would have to be tested by cross examination because otherwise the provision would be violative of the principles of natural justice and as such ultra vires the Constitution of India. It was submitted that there is a marked difference in the language of sub rule (3) of Rule 2 with that of sub rule (6) of Rule 3, inasmuch as in sub rule (3) of Rule 2 it is provided that if the defendant fails to enter appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree whereas in sub rule (6) of Rule 3 the words used are that the plaintiff shall be entitled to judgment forthwith. Meaning thereby that where the defendant had entered appearance, even if the leave to defend is refused or where the condition imposed by the Court for leave to defend is not fulfilled, the plaintiff's case is not deemed admitted and therefore the plaintiff is not entitled to a decree, as prayed for, but is entitled to a judgment which has to be sustainable on the evidence brought on record and no evidence can be relied unless it is allowed to be tested by cross examination. It was submitted that Rule 7 of Order XXXVII specifically provide that the procedure in summary suits shall be same as the procedure in suits instituted in ordinary mode save to the extent provided by Order XXXVII of the Code which implies that the plaintiff would have to prove his case as in an ordinary suit and the consequence of refusal of leave would be nothing more than that that the suit would proceed without a defense as in a case where the suit proceeds ex parte or where the defense has been struck off. It was submitted that even where the suit proceeds ex parte against a defendant or where no written statement is filed or where the defense has been struck off, under the provisions of the Code, the consistent view of this Court as well as the Apex Court had been that the plaintiff would still have to prove his case and the defendant would have a right to cross-examine the plaintiff's witness(es). In support of the above plea reliance was placed on the following decisions:- (i) 1922 (20) All LJ 39 : Mannu and another v. Tulsi; (ii) AIR 1955 SC 425 : Sangram Singh v. Election Tribunal; (iii) AIR 1964 SC 993 : Arjun Singh v. Mohindra Kumar and others; (v) AIR 1972 Patna 81 : Siai Sinha v. Shivadhari Sinha and others; (vi) AIR 1982 Jammu and Kashmir 93 : Chuni Lal Chowdhary v. Bank of Baroda and others; (vii) 1976 (1) SCC 91 : M/s. Paradise Industrial Corporation v. M/s. Kiln Plastic Products; (viii) (1988) 4 SCC 619 : Modula India v. Kamakshya Singh Deo; and (ix) 2002 (2) ARC 296 : Abdul Wadood v. 14th Additional District Judge, Kanpur Nagar and others.
6. In addition to above, on behalf of the revisionist, it was submitted that the use of the word forthwith in sub rule (6) of Rule 3 of Order XXXVII of the Code would not mean that the Court in all situations has to decide the suit immediately, once the leave to defend is refused or the condition imposed for securing leave is not fulfilled. It was submitted that the word forthwith is not to be interpreted as "immediately" or "instantly". It should be understood as enabling as well as mandating the Court to complete the proceeding with reasonable promptitude. It was argued that where the Code enables a Court to pronounce judgment forthwith it would not mean that the judgment is to be on the same day. The Court always has discretion to fix a date to complete the proceeding in accordance with law. More so, it would not give license to the plaintiff not to substantiate his case and straight away obtain a decree on the plaint allegations. In support of the aforesaid submission, reliance was placed on the following decisions:- (i) AIR 1969 SC 323 : Bidya Deb Barma v. District Magistrate, Tripura; (ii) 1993 Supp (3) SCC 754 : Naval Shanker Ishwarlal Dave and another v. State of Gujarat and others; (iii) 1995 Supp (4) SCC 275 : Rao Mahmood Ahmad Khan v. Ranbir Singh and others; (iv) AIR 1966 Ald 615 : Tripathi Sansnath v. Tripathi Bhagwat Nath and others; (v) AIR 1986 Ald 94 : Kuri lal Rungta v. Smt. Banarsi Das and others. Relying on decision of the apex court in the case of Balraj Taneja and Another v. Sunil Madan and another: (1999) 8 SCC 396, it was submitted that even where the defendant has not filed a pleading though it is lawful for the Court to pronounce judgment on the basis of facts contained in the plaint, as under Order VIII, Rule 5(2) and Order VIII, Rule 10 of the Code, but the Court ought to be cautious and only on being satisfied that there is no fact which needs to be proved should pass a judgment and where the plaint itself indicates disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, the court must not pass judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy.
7. Per contra, the learned counsel for the plaintiff-respondent, defending the impugned order, submitted that Order XXXVII is applicable only to certain classes of suit. The primary object underlying summary procedure is to prevent unreasonable obstruction by the defendant who has no defense thereby assisting and securing speedy and expeditious disposal of cases. Summary procedure provided by the Code is aimed at providing certainty, security and continuity in business transactions and is a step in ensuring early disposal of commercial cases. Therefore the provisions of Order XXXVII are to be interpreted in such a manner which serves the object for which it exists in the Code. It has been submitted that for certain classes of suits Order XXXVII is a complete code in itself. It not only lays down the manner in which a summary suit is to be instituted but also prescribes a format in which summons of the suit are to be issued to the defendant and further provides that the plaintiff shall, together with the summons, serve on the defendant a copy of the plaint and annexures thereto. It not only fixes a time by which the defendant has to enter an appearance upon service of summons but also provides for the consequences of non appearance. Once the defendant enters appearance, the plaintiff is required to serve summons for judgment on the defendant in the prescribed format duly supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the suit whereupon the defendant is required to apply for leave to defend by disclosing such facts as may be deemed sufficient, either on affidavit or otherwise, to entitle him to defend. Thereafter, the Court has to apply its mind to the prayer seeking leave to defend and to pass appropriate order which may be: (a) unconditional leave to defend; or (b) conditional leave to defend; or (c) refusal of leave to defend. Provided that leave to defend is not to be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defense to raise or that the defense intended to be put up by the defendant is frivolous or vexatious. It was submitted that the object of granting conditional leave to defend is to wipe out frivolous and baseless pleas so that the object to provide summary procedure is not frustrated. It was submitted that the difference in the procedure of an ordinary suit and a summary suit is that in the former the defendant requires no leave of the Court to defend the suit and he is entitled to defend it as of right whereas in the latter the defendant is required to apply for leave to defend within ten days of service of the summons for judgment. It was submitted that in a summary suit the defendant has no right to defend unless leave is granted to him by the Court to defend. Therefore, where the defendant fails to obtain leave to defend or where the leave to defend has been granted conditionally and the defendant fails to fulfill the condition, the decree is almost automatic because it would be deemed that the defendant has no defense to offer. It was submitted that the authorities relied upon by the defendant-revisionist are in the context of an ordinary suit and would have no application to suits instituted under Order XXXVII. It was submitted that the use of words "entitled to judgment forthwith" as they occur in sub-rule (6) of Rule 3 of Order XXXVII are to be interpreted in the context of sub-rules (4) and (5) of Rule 3 of Order XXXVII which provides that when the defendant enters an appearance, the plaintiff would serve on the defendant a summons for judgment in Form No. 4A, supported by an affidavit verifying the cause of action and the amount claimed with a statement that in his belief there is no defense to the suit. It was submitted that summons for judgment in a summary suit is to be in Form No. 4 A, which puts the defendant on notice to attend the Court on a particular date on the hearing of an application of the plaintiff to obtain judgment in the suit against him for a specified sum of money and for interest and cost. Meaning thereby that where leave to defend, upon service of summons for judgment is refused or leave granted is conditional and the condition has not been fulfilled, then the plaintiff is entitled to judgment forthwith as contemplated in the summons for judgment served on the defendant. It was submitted that the words "judgment forthwith" is therefore to be understood in that context and they should not be interpreted so as to mean that the plaintiff's case has to be considered and determined as in an ordinary suit proceeding ex parte. It has been submitted on behalf of the plaintiff that since a special procedure has been provided by the Code for deciding a summary suit where the defendant either fails to enter appearance or fails to obtain leave to defend or fails to fulfill the condition, in a case where the leave to defend has been granted conditionally, the general provisions of the Code of Civil Procedure which are, otherwise, applicable would be deemed excluded notwithstanding Rule 7 of Order XXXVII of the Code. It was submitted that since admittedly the leave to defend was granted conditionally and the condition was not fulfilled, the plaintiff was entitled to judgment forthwith as contemplated in the summons for judgment and the application of the defendant to cross-examine the plaintiff's witness is nothing but misconceived inasmuch as the defendant would be deemed to have admitted plaintiff's case.
8. I have given thoughtful consideration to the submissions of the learned counsel for the parties and perused the record.
9. Before proceeding to consider the rival submissions, it would be apposite to refer to the object which the provisions of Order XXXVII seek to achieve. The principle object for providing summary procedure in certain classes of suits was to prevent unreasonable obstruction by a defendant who had no real defense thereby assisting and securing speedy and expeditious disposal of cases. The procedure prescribed in Order XXXVII of the Code is a step in ensuring early disposal of commercial cases such as suits based on negotiable instruments or suits where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a written contract; or on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. The fundamental difference in the procedure of an ordinary suit with that of a summary suit is that in an ordinary suit the defendant has inherent right to defend for which no leave is required whereas in a summary suit, the defendant has to enter an appearance within a specified period upon service of summons in a prescribed form and thereafter upon service of summons for judgment, which again is in a prescribed form, has to seek from the Court or the Judge leave to defend. A challenge was laid to the constitutionality of Order XXXVII on the ground that it violated the principles of natural justice and was arbitrary as well as discriminatory. The Calcutta High Court while upholding its validity in the case of Ambalal Purusottamdas And Co. vs Jawarlal Purusottam Dave And Ors : AIR 1953 Calcutta 758 observed that Order XXXVII is based on a reasonable and justifiable classification; and that the procedure under Order XXXVII is neither against the principles of natural justice nor it is unreasonable within any constitutional prohibition.
10. To better understand the import of the provisions of Rules 1, 2 and 3 of Order XXXVII of the Code, it would be useful to examine the provisions as they existed prior to the amendment brought about by Act No.104 of 1976. Rules 1, 2 and 3 of Order XXXVII of the Code, as they existed prior to the amendment brought by Act No.104 of 1976, read as under:-
" Rule 1-This order shall apply only to -
(a) the High Court of Judicature of Fort William, Madras and Bombay;
(b) any District Court or other Court specially empowers in this behalf by the State Government;
(c) (* * *) and
(d) any other court to which Sections 532 to 537 of the Code of Civil Procedure, 1882, have been already applied;
and (e) any court in the province of Agra exercising the powers of a summary case (inserted by High Court, Allahabad) Rule 2- Institution of summary suits upon bills of exchange etc.-
(1) All suits upon bills of exchange, hundies or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed, but the summons shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.
(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit, unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defense in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree---
(a) for the principal sum on the instrument and for interest calculated in accordance with provisions of section 79 or section 80, as the case may be, of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit, or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and
(b) for such subsequent interest, if any, as the court may order under Section 34 of this Code; and
(c) for such sum for costs as may be prescribed:
Provided that, if the plaintiff claims more than such fixed sum for costs, the cost shall be ascertained in the ordinary way.
(3) A decree passed under this rule may be executed forthwith.
Rule 3-- Defendant showing defence on merits to have leave to appear (1) The court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit."
11. By Amending Act No.104 of 1976, with effect from 01.02.1977, Rules 1, 2 and 3 of Order XXXVII of the Code were substituted as under:-
Rule 1. Courts and classes of suits to which the Order is to apply.--(1) This Order shall apply to the following Courts, namely:--
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) other Courts:
Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:--
(a) suits upon bills of exchange, hundies and promissory notes;
(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,--
(i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.
Rule 2. Institution of summary suits.--(1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,--
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and
(c) the following inscription, immediately below the number of the suit in the title of the suit, namely:-- "(Under Order XXXVII of the Civil Procedure Code, 1908)."
(2) The summons of the suit shall be in Form 4 in Appendix B or in such other Form as may, from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.
Rule 3. Procedure for the appearance of defendant.--(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under Rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.
(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form 4-A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.
(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.
(6) At the hearing of such summons for judgment,--
(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.
(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.
12. A perusal of the amended provisions of Rules 1, 2 and 3 would go to show that by virtue of amendment the list of courts to which, and the classes of suits in which, summary procedure was applicable was expanded. Apart from that the amendment provided for the sequence in which the defendant had to enter an appearance upon service of summons in From 4 and, thereafter to apply for leave to defend upon service of summons for judgment in Form 4-A. Because before the amendment the defendant had to obtain leave of the Judge to appear and to defend. Accordingly, under the amended provisions the sequence is that summons of the suit is issued first and when the defendant appears, the plaintiff is to serve on the defendant a summons for judgment. When summons for judgment is served, the defendant has to obtain leave of the Court to defend the suit. Prior to the amendment, there was no provision for service of summons for judgment though the summons of the suit were to be served in Form 4 whereas now the defendant is to be first served summons in Form 4 and, thereafter, when he enters appearance in response thereto, the plaintiff is required to serve on him the summons for judgment in Form 4 A, which has to be supported by an affidavit verifying the cause of action and the amount claimed with a statement that in his belief there is no defense to the suit. Upon service of the summons for judgment in Form 4 A, the defendant has a right to apply for leave to defend, at any time within ten days from the date of service, supported by an affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, upon which, leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. Proviso 1 to sub-rule (5) of Rule 3 of Order XXXVII provides that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defense to raise or that the defense intended to be put up by the defendant is frivolous or vexatious. Proviso 2 of sub-rule (5) of Order XXXVII provides that where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.
13. At this stage, it would be useful to take notice of the format in which summons in a summary suit are to be served on the defendant. Form 4 in Appendix B of the Code provides the format in which summons in a summary suit are to be served. The Form 4 in Appendix B reads as under:-
"No.4 SUMMONS IN A-SUMMARY SUIT' (Order XXXVII, Rule 2) (Title) To [Name, description and place of residence] Whereas........................[Name, description and place of residence] ................ has instituted a suit against you under Order XXXVII of the Code of Civil Probedure, 1908, for Rs. ........... and interest, you are hereby summoned to cause an appearance to be entered for you, within ten days from the service hereof, in default whereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs....... . and the sum of Rs......... for the costs, together with such interest, if any, as the Court may order.
If you cause an appearance to be entered for you,.......the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit.
Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend.
Given under my hand and the seal of the Court, this...... day of.....20.....
Judge."
14. From 4 A provides for the format in which the summons for judgment in a summary suit is to be served on the defendant. The same reads as under:-
"No. 4A SUMMONS FOR JUDGMENT IN A-SUMMARY SUIT' (Order XXXVII, rule 3) (Title) In the ..........Court, at ..........Suit No.. .......of 19..../20....
X.Y. Z. .................................................................Plaintiff versus A. B. C. .............................................................Defendant.
Upon reading the affidavit of the plaintiff the Court makes the following order, namely:-
Let all parties concerned attend the Court or Judge, as the case may be, on the day of .../20...,at O'clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs.......... and for interest and costs.
Dated ..............the day of.............19...../20..."
15. Sub-rule (6) of Rule 3 of Order XXXVII provides that at the hearing of such summons for judgment, the plaintiff is entitled to judgment forthwith in the following eventualities: (a) where the defendant does not apply for leave to defend, or where such application has been made and is refused; or (b) where the defendant is permitted to defend as to the whole or any part of the claim upon furnishing such security as the Court or Judge may direct him to give within such time as may be fixed by the Court or Judge and the defendant has failed to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge.
16. On a conjoint reading of the provisions of sub rules (4), (5) and (6) of Rule 3 of Order XXXVII with Forms 4 and 4-A in Appendix B of the Code, it is clear that the judgment as contemplated by sub rule (6) of Rule 3 of Order XXXVII of the Code is the judgment for which summons in Form 4-A has been served on the defendant. Meaning thereby that in a summary suit where the defendant has failed to obtain leave to defend or has failed to comply with the condition imposed, in a case, where leave to defend though has been granted but is subject to condition, the plaintiff is entitled to judgment, as contemplated in the summons for judgment, forthwith thereby obviating a long drawn trial as contemplated in an ordinary suit. The term forthwith, as it occurs in sub rule (6) of Rule 3 of Order XXXVII of the Code, is therefore to be interpreted accordingly and not as suggested by the learned counsel for the revisionist by referring to judgments rendered in ordinary suits as distinct from summary suits.
17. The difference in procedure of a summary suit with that of an ordinary suit up to the stage of hearing summons for judgment has been examined and considered by the Apex Court in the case of Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. : (1998) 5 SCC 69. The question which arose before the Apex Court in that case was as to whether the bar to proceed with the trial of a subsequently instituted suit, as contemplated by Section 10 of the Code, was applicable to a summary suit instituted under Order XXXVII of the Code. In that case, a summary suit was instituted for obtaining a money decree by alleging that the amount had become recoverable under a Letter of Credit. Plaintiff took out summons for judgment and the defendant appeared before the Court and moved an application seeking stay of the summary suit on the ground that he had already instituted a suit against the plaintiff for recovery of a certain sum of money prior to the filing of the summary suit. The trial Judge, who heard summons for judgment, held that the concept of trial as contained in Section 10 of the Code is applicable only to regular/ ordinary suit and not to a summary suit instituted under Order XXXVII of the Code and, therefore, further proceedings under summary suit were not required to be stayed. The defendant filed an appeal. The appellate court held that the word 'trial' in Section 10 has not been used in a narrow sense and would mean entire proceeding after the defendant enters his appearance and, therefore, the appellate court held that Section 10 of the Code applies to a summary suit also. Aggrieved by the decision of the appellate court, the plaintiff of that suit filed appeal before the Apex Court. Before the Apex Court, it was argued that if section 10 was made applicable to summary suits also, the very object of making a separate provision for summary suits would be frustrated. While deciding the said case, the Apex Court in paragraph nos. 9 and 10 of its decision observed as follows:-
"9. The provision contained in Section 10 is a general provision applicable to all categories of cases. The provisions contained in Order 37 apply to certain classes of suits. One provides a bar against proceeding with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. This being the correct approach and as the question that has arisen for consideration in this appeal is whether the bar to proceed with the trial of subsequently instituted suit contained in Section 10 of the Code is applicable to a summary suit filed under Order 37 of the Code, the words 'trial of any suit' will have to be construed in the context of the provisions of Order 37 of the Code. Rule 2 of Order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith. If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. Rule 7 of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner. Thus in classes of suits where adopting summary procedure for deciding them is permissible the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance as required or fails to obtain leave the allegations in the plaint are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff. The stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant. This clearly appears to be the scheme of summary procedure as provided by Order 37 of the Code.
10. Considering the objects of both the provisions, i.e., Section 10 and Order 37 wider interpretation of the word 'trial' is not called for. We are of the opinion that the word 'trial' in Section 10, in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the 'trial' really begins after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted." (Emphasis Supplied)
18. From the observations of the Apex Court in the judgment of Indian Bank's case (supra), the following position emerges:
(a) Order XXXVII provides a special /summary procedure for certain classes of suits. Rule 2 thereof enables the plaintiff to institute a summary suit in certain cases. On such a suit being instituted the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service thereof the defendant has to enter an appearance. Thereafter the plaintiff has to serve on the defendant a summons for judgment in the prescribed form. Upon service thereof, within the prescribed time the defendant has to apply for leave to defend the suit. Leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant has not applied for leave to defend, or if such an application has been made and is refused, the plaintiff becomes entitled to judgment forthwith. Likewise where the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith.
(b) In a summary suit up to the stage of grant of leave there is a special procedure and therefore the concept of 'trial' as contemplated by Section 10 of the Code, in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the 'trial' really begins after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with a summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.
19. In the case of Ajay Bansal v. Anup Mehta and Ors.: (2007) 2 SCC 275, the Apex Court observed that a decree passed in a summary suit where leave to defend the suit has been refused is almost automatic. The consequence of passing a decree cannot be avoided. It was observed that a decree passed subsequent to the refusal of leave to defend could either be under Order XXXVII Rule 3(6) of the Code or it could be based on the affidavit evidence on the side of the plaintiff and the documents produced or even based on oral evidence formally proving the execution of a promissory note by the defendant.
20. In the case of D. Shanalal And Others vs Bank Of Maharashtra : AIR 1989 Bom 150, before a Division Bench of the Bombay High Court, a question arose whether in an appeal preferred by a defendant against a decree passed in a summary suit, the defendant, who had failed to comply with the conditions upon which the leave to defend was granted, could raise objection with regard to admissibility of the documents produced by the plaintiff in support of its claim. Holding that the defendant would not have a right to challenge the admissibility of the documents, the Division Bench observed as follows:-
"In our view, these submissions are no longer open to the Appellants to make. In the first place, these submissions really amount, to raising defences by the Appellants even after they had failed to comply with the conditional orders granting leave to defend. The question of proof of admissibility of documents in a contested suit could have been raised by a party against whom such documents are attempted to be brought on record and used. But in view of their failure to furnish the security the Defendants who had failed to obtain leave to contest must be deemed to have admitted the contents of the plaint filed by the Plaintiff. Secondly, the Plaintiff Bank had become entitled to a decree."
21. In A.B. And U. Communication Pvt. Ltd, Mumbai v. Jitu Shah : 2009 (79) AIC 832 (Bom. H.C.-A.B.), a question as has cropped up in the present case was specifically under consideration before the Bombay High Court. In that case, the plaintiff in a summary suit had served summons for judgment on the defendant. The defendant was granted leave to defend subject to deposit of a certain sum of money. The defendant did not comply with the condition imposed, upon which the plaintiff applied for judgment. The defendant claimed that even though his defense may not be considered but he would have right to cross-examine the plaintiff or his witness and that right cannot be shut off and, therefore, the defendant applied to the Court to direct the plaintiff to put his witnesses in the box and allow the defendant to cross-examine them and then consider the matter on merits. Rejecting the defendant's contention, it was observed as follows:-
" It is required to be noted that when the Summons for Judgment is decided on merits and when the defendant is directed to deposit certain amount of money as a condition precedent and is ordered to file written statement subject to compliance of those directions, the Court wants that the defendant should comply with those terms and conditions. The provisions of Order XXXVII if considered in totality, it is clear that if the defendant fails to comply with the order passed in Summons for Judgement, it will be treated that the defendant has no defence and that situation will have to be equated with a situation where the averments in the plaint are deemed to have been admitted. In substance, if the defendant does not comply with the order passed at the stage of disposal of Summons for Judgment in Order XXXVII of C.P.C., it will be deemed that the defendant has no defence and that the case of the plaintiff is required to be decided on merits as a whole and no further proof as expected under the Evidence Act is required to be placed by the plaintiff in order to prove his case.
............The stand taken by the defendants that the plaintiffs should be directed to put their witness in the box, permit the defendants to cross-examine them and then arrive at a final conclusion, cannot be accepted. In my view, once the defendants fail to comply with the terms to which they were put, the plaintiffs case will have to be decided on the basis of the plaint and the original documents by following the provisions of Order XXXVII, Rule 3 (6) (b), keeping in view the terminology "Plaintiff shall be entitled to judgment forthwith". It is in the circumstances, the stand taken by the defendants is required to be rejected."
22. Taking a conspectus of the provisions of Order XXXVII of the Code and the decisions noticed herein above, this Court is of the view that summary suits relate to certain classes of suits, for which there is a special procedure to be followed up to the stage of hearing the summons for judgment. In summary suits, the defendant is put to notice vide summons in Form 4 that the matter would be tried as a summary suit and he must therefore enter his appearance within a specified time otherwise the plaintiff would be entitled to a decree. Not only that he is also informed that the plaintiff will thereafter serve upon him a summons for judgment at the hearing of which he will be entitled to move the Court for leave to defend the suit. He is also informed that the leave to defend may be obtained if he satisfies the Court by affidavit or otherwise that there is a defense to the suit on the merits or that it is reasonable that he should be allowed to defend. Thereafter, when the defendant enters his appearance, he is served with a summons for judgment in the prescribed form (Form 4-A) which specifies that upon reading the affidavit of the plaintiff, the Court requires all parties concerned to attend the Court on a given date for hearing on the application of the plaintiff to obtain judgment in the suit against the defendant for a specified sum of money and for interest and cost. Upon receipt of such summons, within a specified period of time, the defendant has to apply for leave to defend by filing an affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend. Upon such prayer being made on behalf of the defendant, the Court may grant leave to defend unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant does not apply for leave to defend, or if such application is rejected, the plaintiff is entitled to judgment forthwith. It is only when the leave to defend is granted unconditionally or conditionally and the condition prescribed is fulfilled, the trial of the suit commences and the regular procedure as prescribed in the Code of Civil Procedure becomes applicable. Therefore, the Court or the Judge dealing with the summary suit, up to the stage of hearing the summons for judgment, can proceed to pass the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted. As, till the stage of grant of leave, a special procedure has been prescribed by the Code, the general provisions of the Code as applicable in an ordinary suit are not applicable to a summary suit up to that stage. The decisions which have been relied by the learned counsel for the defendant-revisionist so as to contend that the defendant cannot be deprived of his right to cross-examine the plaintiffs' witnesses even though he has not been given leave to defend, would not apply in the case of a summary suit, up to the stage of hearing the summons for judgment, having regard to the provisions of Order XXXVII, Rules 1, 2 and 3 of the Code. However, once leave to defend is granted, either unconditionally or conditionally and the condition is fulfilled, the plaintiff would lose his right to have a judgment forthwith, as contemplated by the summons for judgment, and, in that event, the suit would proceed as per the general provisions of the Code in view of Rule 7 of Order XXXVII of the Code; and, in such an event, the defendant would have right to cross examine the plaintiff's witness, if examined, even if the suit proceeds ex parte or without a defense as in an ordinary suit. But where the leave to defend is either rejected or granted conditionally and the condition is not fulfilled, the plaintiff is entitled to a judgment forthwith and in such a situation, he can obtain a decree forthwith as contemplated under Order XXXVII, Rule 3(6) of the Code or it could be based on the affidavit evidence on the side of the plaintiff and the documents produced or even based on oral evidence formally proving the same as has been observed by the Apex Court in the case of Ajay Bansal (supra). The decisions relied upon by the learned counsel for the revisionist are in the context of ordinary suits where no leave to defend is required and, therefore, in an ordinary suit, even where the suit proceeds ex parte or the defense is struck off, the defendant is not precluded from cross examining plaintiff's witness, whereas in a summary suit there is no inherent right to defend without the leave of the Court or the Judge. Accordingly, the authorities cited by the learned counsel for the revisionist are not of much help to the revisionist.
23. There is another reason in support of the view taken above which is that if right to cross examine the plaintiff witnesses is accepted without even grant of leave to defend then the very purpose of introducing summary procedure for certain classes of suits would stand frustrated, inasmuch as, as per the provisions, at the stage of hearing the summons for judgment the defendant has to satisfy the Court or the Judge by disclosing such facts, as may be deemed sufficient, to entitle him to defend and such application is not to be rejected unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defense to raise or that the defense intended to be put up by him is frivolous or vexatious. Therefore, once the leave to defend is refused or is deemed to be refused in case of non fulfillment of the condition where the leave to defend is conditional, the legislative intent is that it should be deemed that the defendant has either no defense or that the defense intended to be put up by him is frivolous or vexatious. Under the circumstances providing him a right to cross examine the plaintiff's witness, when the plaintiff becomes entitled to judgment as contemplated by the summons, would be providing a right which the legislature intended to take away in a given situation.
24. The contention of the learned counsel for the revisionist that the phrase that "the plaintiff shall be entitled to judgment forthwith", used in sub-rule (6) of Rule 3 of Order XXXVII of the Code, when is compared with the phrase "entitled to a decree for any sum, not exceeding the sum mentioned in the summons," used in sub-rule (3) of Rule 2 of Order XXXVII, it would suggest that the legislative intent was not to provide to the plaintiff a right to obtain a decree straight away once the defendant enters an appearance, even if no leave to defend is granted, cannot be accepted. Because sub-rule (3) of Rule 2 of Order XXXVII of the Code contemplates a situation where the defendant fails to enter an appearance despite being served the summons of the suit in Form 4 whereas sub rule (6) of Rule 3 of Order XXXVII contemplates a stage later that is a stage where the defendant has already entered an appearance and has been served the summons for judgment in Form 4A and, thereafter, has either failed to apply for leave to defend or his prayer to grant leave to defend has been refused or the condition of such grant has not been fulfilled. In such an eventuality the judgment to which the plaintiff becomes entitled forthwith, under sub-rule (6) of Rule 3 of Order XXXVII of the Code, is the judgment for which the summons in Form No.4A has been served on the defendant. Accordingly, the non use of the word 'decree' in sub-rule (6) of Rule 3 of Order XXXVII of the Code would not dilute the entitlement of the plaintiff to have a decree in his favour in the given situation.
25. In view of the discussion made above, it is held that in a summary suit where leave to defend is refused or is not applied for, or where the condition to avail the leave to defend is not fulfilled where leave to defend has been granted conditionally, the plaintiff becomes entitled to judgment forthwith and, therefore, the defendant would have no right to cross examine the plaintiff's witness.
26. As, in the instant case, there is no dispute that leave to defend was granted conditionally and the condition was not fulfilled even within the time allowed by the Apex Court, therefore, the order passed by the court below rejecting the application of the defendant to seek cross-examination of the plaintiff's witness, by placing reliance on the provisions of Order XXXVII Rule 3 (6)(b) of the Code, cannot be said to suffer from any legal infirmity and to that extent the impugned order passed by the court below is entitled to be affirmed.
27. But, in the instant case, by application 51 Ga, the defendant- revisionist not only prayed for allowing him to cross-examine plaintiff's witness but also sought to address the court on legal points whereas by the order impugned the said application was rejected outright. Therefore the issue that arises for consideration is as to what extent a defendant in a summary suit, whose leave to defend has been refused or is deemed refused on non-compliance of condition where leave has been granted conditionally, can address the court to defeat the plaintiff's case.
28. To determine the above issue what needs to be examined first is as to when a leave to defend is required by the defendant to contest the summary suit. A conspectus of the provisions of Rules 1, 2 and 3 of Order XXXVII of the Code would go to show that for a summary suit to be maintainable under Order XXXVII, the plaintiff has to aver and demonstrate that the suit as instituted by him falls within the classes of suits on which a summary suit can be brought and further that the said suit has been brought in accordance with provisions of the Code. Therefore if the plaintiff fails to demonstrate that the suit falls within the specified categories on which a summary suit can be instituted or that the requirement of the provisions for a valid institution of a summary suit has not been fulfilled, the requirement of seeking leave to defend would not arise. Hence, it is held that even in absence of leave to defend, the defendant can bring to the notice of the Court or the Judge before whom the suit has been instituted that the suit itself is not triable under Order XXXVII of the Code of Civil Procedure. But, while doing so, the defendant-revisionist, in absence of leave to defend, would not have a right to lay his defense though he would be entitled to address the Court on the aforesaid aspect on the basis of the case set up by the plaintiff himself. The view taken above, finds support from a decision of the Delhi High Court in the case of Sarla Devi and Ors. v. Daya Ram and Ors.: (1995) 57 DLT 126.
29. Accordingly, this Court is of the view that although the defendant-revisionist would have no right to cross-examine the plaintiff's witness but would have a right to address the Court and raise a question as to the jurisdiction of the Court to try the suit under Order XXXVII of the Code by pointing out non-applicability of Order XXXVII to the suit of the nature instituted against the defendant-revisionist.
30. For the reasons recorded above, the impugned order dated 10.11.2014 to the extent it rejects the defendant-revisionist's prayer made in the application 51 Ga to allow cross-examination of the plaintiff's witness is affirmed. However, the impugned order dated 10.11.2014 to the extent it rejects the prayer of the revisionist made in application 51 Ga to enable him to argue on legal points is set aside and the application 51 Ga is partly allowed only to the extent that it would be open to the defendant to raise a question as to the jurisdiction of the Court to try the suit under Order XXXVII of the Code by pointing out non-applicability of Order XXXVII of the Code to the suit of the nature instituted against the defendant. But, while doing so, the defendant-revisionist would not have a right to lay its defense.
31. It is made clear that this court has not expressed any opinion as to whether the suit is maintainable or not as a summary suit.
32. The revision stands allowed to the extent indicated above. Interim order, granted earlier, stands discharged. There shall be no order as to costs.
Order Date :- 11.07.2016 Sunil Kr Tiwari