1. This appeal is directed against the judgment and decree dated 25-10-1979 of the District Judge, Dakshina Kannada, Mangalore in R.A. No. 18 of 1979 on his file.
2. Facts involved may be stated briefly;
The respondent herein filed a suit against the appellant for recovery of a sum of RS. 10,175.04 p. in the Court of the Principal Civil Judge, Mangalore (D.K) in O.S. No. 37 of 1979. The suit was filed invoking the summary procedure as laid down under Order XXXVII of the Civil Procedure Code. The plaintiff, which is firm claims that that in respect of a premises situated in the City of Mangalore the defendant gives its monthly tenant, being liable to pay a monthly rent of RS. 2,500/-, under a registered lease-deed dated 23-11-1976. The plaintiff's allegations in the suit was that the defendant had committed default in the payment of rents due for the months of October to December, 1978 and January 1979 and therefore, he was liable to pay the said sum of RS. 10,000/- plus interest at 12% from the due dates, in all amounting to RS. 10,175.04 P.
3. The defendant, who admittedly had not entered appearance and sought permission of the court to defend the claims within the time stipulated in the relevant sub-rules of Rule 3 of Order XXXVII, filed an application (I.A.I) in the court below stating that O.XXXVII was not attracted to the facts of the case, that that special procedure could not have been invoked by the plaintiff; and that in the circumstances, he was entitled to contest the suit as of right and without the constraints of Order XXXVII and the relevant rules. The Civil Judge held that the suit could be proceeded with under Order XXXVII and further held that I. A. I by which the defendant had sought for permission to enter appearance and defend the suit, was not maintainable and dismissed the said I. A. and granted a decree in favour of the plaintiff as sought for . The learned District Judge has upheld the judgment and decree of the Civil Judge.
4. Two questions arise for considerations in this appeal, and they are:
(i) Whether the provisions of order XXXVII do not apply to the suit in question and
(ii) if it is held that that order is applicable to the suit, does I.A.I filed by the defendant require reconsiderations on merits?
5. In the trail court the plaint was presented on 8-2-1979. It was registered as an original suit on 9-2-1979 and on that very day the court ordered summons to the defendant returnable by 24-3-1979. Copy of the summon was served on the defendant on 14-2-1979, the server returning the original to the court, with the acknowledgement of the defendant for having received the summons, with his (server's) own share on it. The summons in original reads as follows;-
' IN THE COURT OF THE CIVIL JUDGE OF MANGALORE O.S NO. 37/79.
M/s sea View Tourist home: Plaintiff
Harikrishna Punarur :Defendant,
Sri Harikrishna Purnarur,
S/o Vasudeva Rao,
Opp. State Bank of India ,
Whereas the plaintiff has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for RS. 10,175-04 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. 10,175-04 and the sum of RS. 1169-00 for 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 it you satisfy the court by affidavit or otherwise that there is 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 12th day of February, 1979.
Advocate for Plaintiff,
Received Copy Plaint,
(Original in Kannada Ommitted. - Ed.)
6. On 27-3-1979 I.A.I an application Under Section 151 read with Order XXXVII Rule 3 of the Code seeking permission of the court of the file the written statement was filed by the defendant . In the affidavit filed along with the application the defendant stated that the plaintiff himself had committed default in performing certain terms of the lease-deed; that therefore, he had filed a suit in O.S. No. 101/79 in the court of the Munsiff, Mangalore claiming specific performance and for other reliefs; that the plaintiff had also filed another suit against him in O.S No. 101/79 seeking an injunction restraining him from having the kitchen at the rear room of the premises; that in the present suit the plaintiff had invoked Order XXXVII, but by sheer oversight that he the defendant, had noticed that fact was not aware of the implication and therefore could not appear within 10 days of service of notice; and that that delay was unintentional and bonafide. He has further stated that even otherwise the provisions of Order XXXVII do not apply to suit in question as the lease-deed was not a contract but a conveyance and that, therefore he was entitled to contest the suit without the constraints of the said Rule. In the end he requested the court that in the interest of justice it should not permit him to file his written statement as otherwise he would be put to great loss and serious hardship.
7. Order XXXVII and the relevant rules read as follows:-
'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 debt liquidated demand only.
(2). INSTITUTION OF SUMMARY SUITS:-
(1) A suit to which this order applies may, if the plaintiff desires to proceed thereunder, 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. R. 2 of the code of C.P. 1908)
(2) The summons of the suit shall be in Form No.4 in Appendix-B or in such other form may, from time to time be prescribed.
(3) The defendant shall not defend the suit referred to inn 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 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 determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith:
3. PROCEDURE FOR THE APPEARANCES 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 the either case , he shall file in court and 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 date of entering the appearance, notice of such appearances shall be given by the defendant to the plaintiffs pleader or of 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 pleader or of the plaintiff, as the case may be.