Skip to content


Kesumal Vaparmal a Firm and ors. Vs. Bhagwandas Bhojraj - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 69 of 1975
Judge
Reported inAIR1976MP123
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rule 1
AppellantKesumal Vaparmal a Firm and ors.
RespondentBhagwandas Bhojraj
Appellant AdvocateK.N. Agarwal, Adv.
Respondent AdvocateM.D. Dhote, Adv.
DispositionAppeal dismissed
Cases ReferredAbdul Salam Abdul Hamid v. Laxmi Singh Tularam
Excerpt:
.....in that behalf by the state government, clause (b) would have read like this :any court specially empowered in this behalf by the state..........at the rate of 12% per annum.4. on the institution of the suit upon the hundis, the learned districtjudge passed an order for issue of summons to the defendant. on 25-11-1974, summons in form no. 4 in appendix b to the code was accordingly issued to the defendant, requiring him to enter appearance within 10 days from the service thereof and to enter appearance and defend the suit within such time. in the summons in the prescribed form, the defendant was also notified that in default of such appearance, the plaintiff would be entitled to obtain a decree for a sum of rs. 14,365/-, at any time after expiration of such ten days. the defendant was duly served with the summons on 22-2-1975. he. therefore, had time till 4-3-1975 to enter appearance. but, instead of appearing on that.....
Judgment:

Sen, J.

1. This appeal by the defendants is directed against a judgment of the District Judge, Raipur, dated 25th March, 1975, decreeing the plaintiff's claim for recovery of Rs. 14,365/- on the strength of three Hundis dated 9-2-1973- The Hundis are Exs. P-2, P-3 and P-4.

2. The short point involved in the appeal is whether the learned District Judge had jurisdiction to entertain the suit. It is urged that the summary procedure provided by Order XXXVII of the Code of Civil Procedure, for trial of suits based on Negotiable Instruments, is not applicable to the State of Madhya Pra-desh, unless there is a notification by the State Government in that behalf, under Sub-clause (b) of Rule 1 thereof.

3. The question arises under the following circumstances On 9-2-1973, tha plaintiff who is a registered money-lender, advanced a cash loan of Rs. 13.000/- to the defendant on the strength of three Sahjog Hundis, Exts. P-2, P-3 and P-4, payable after 90 days. On the due date. i. e., on 10-5-1973, the Hundis were presented but they were dishonoured. The plaintiff, accordingly, after service of a notice of demand dated 29-6-1974, instituted the present suit on 19-11-1974 for recovery of Rs. 14,365/-, comprising of Rs. 13,000/-being the principal and Rs. 1,305/- towards interest due thereon at the rate of 12% per annum.

4. On the institution of the suit upon the Hundis, the learned DistrictJudge passed an order for issue of summons to the defendant. On 25-11-1974, summons in Form No. 4 in Appendix B to the Code was accordingly issued to the defendant, requiring him to enter appearance within 10 days from the service thereof and to enter appearance and defend the suit within such time. In the summons in the prescribed form, the defendant was also notified that in default of such appearance, the plaintiff would be entitled to obtain a decree for a sum of Rs. 14,365/-, at any time after expiration of such ten days. The defendant was duly served with the summons on 22-2-1975. He. therefore, had time till 4-3-1975 to enter appearance. But, instead of appearing on that date, the defendant appeared on 25-3-1975, i. e., the date fixed for hearing, and applied for adjournment of the suit. That application admittedly was not an application for leave to defend the suit, as it was not in time and did not contain any such prayer, nor was it sup-corted by an affidavit, as required by Order XXXVII, Rule 2 of the Code. The learned District Judge refused the adjournment sought, and decreed the plaintiff's claim on 25-3-1975.

5. The decision of the appeal turns on the construction of Clause (b), Rule 1 of Order XXXVII of the Code, the material portion of which reads :

'Rule 1. Application of Order.-- This Order shall apply only to-

(b) any District Court or other Court specially empowered in this behalf' by the State Government;'

In support of the appeal, Shri Agarwal, learned counsel for the appellant strenuously contends that the word 'specially empowered in this behalf by the State Government' qualifies both 'District Court' as well as 'other Courts'. The contention can hardly be accepted.

6. The submission is that the expression 'District Court' would be rendered a superfluity and, therefore, Clause (b) should be read as meaning 'District Court' or 'other Courts' as belonging to one category. We are unable to appreciate this. line of argument. Though the expression 'District Court' is not defined, the Code defines 'District' in Section 2 to mean the local limits of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court'). In view of that definition, there can be no doubt that the 'District Court' which is a Court of well-known jurisdiction, is the principal Court of original jurisdiction. In the CivilProcedure Code the expression 'District Court' must, therefore, bear that meaning in the context of Order XXXVII, Rule 1 (b).

7. If the expression 'District Court' occurring in Rule 1 (b) is given that meaning, then it is evident that Clause (b) refers to two categories of Courts, namely, (i) the District Court and (ii) other Courts. The expression 'District Court' almost, in the context in which it appears mean the District Judge. The word 'or' occurring in Clause (b) is clearly disjunctive. Clause (b) of Rule 1, therefore, envisages the trial of suits based on negotiable instruments by recourse to the summary procedure provided by Order XXXVII of the Code, by (i) the District Court i. e., by the District Judge, and (ii) other Courts, may be by Additional District Judges, or the other Judges, or Civil Judges Class I or Class II, depending on their pecuniary jurisdiction, when such Courts are specially empowered by the State Government in that behalf. That is the construction placed on Clause (b) of Rule 1 by Shiv Dayal, J. in Abdul Salam Abdul Hamid v. Laxmi Singh Tularam, 1968 MPLJ 316 = (AIR 1968 Madh Pra 144). No other construction, in our view, is possible.

8. Under Section 3 of the Madhya Pradesh Civil Courts Act, 1958, the Court of the Addl. District Judge is distinct from the Court of District Judge. It is declared in Section 7 (1) of the Act that the Court of the District Judge shall be the principal Court of original jurisdiction in the civil district. That being so, the expression 'District Court', as defined in Section 2(4) of the Code, must mean the District Judge. The Addl. District Judge may also function as the principal Court of original jurisdiction, by virtue of Section (2) of Section 7 of the Madhya Pradesh Civil Courts Act, 1958, provided the District Judge assigns to him that function by a special order.

9. Shiv Dayal, J., in construing Clause (b) of Rule 1 of Order XXXVII observed as follows :--

'Clause (b) can be construed in two ways according as the condition of specially empowering is read to qualify the expression 'other Court' only or also to qualify 'District Court'. On the latter interpretation even a District Court will have no jurisdiction to proceed under Order 37 unless and until it is specially empowered in that behalf by the State Government. If the intention of the law was not to confer on the District Court the jurisdiction under Order 37, Civil Pro-cedure Code, unless it was specially empowered in that behalf by the State Government, it was not at all necessary to name that Court separately. If the Legislature did not want any Court, including a District Court, to exercise jurisdiction under Order 37, unless it was specially empowered in that behalf by the State Government, Clause (b) would have read like this :

'Any Court specially empowered in this behalf by the State Government.' The mention of the District Court separately can have no other meaning than the statutory conferment of the jurisdiction on it under Order 37, not depending upon any such special empowering. It seems to me undoubted that the word 'or' in Clause (b) is disjunctive. It completely separates two things, 'District Court', 'other Court specially empowered in this behalf by the State Government'. On this analysis, it must be held that a District Court has statutory jurisdiction under Order 37, Rule 1, Civil Procedure Code, and it does not depend upon a special empowering in that behalf by the State Government.'

We are in agreement with this view.

10. Two sum up : By virtue of the extent clause contained in Section 1(3) of the Code, the provision of the Code of Civil Procedure, 1908, including those of Order XXXVII for an expeditious trial of suits based on Negotiable Instruments by summary procedure, are applicable to the whole of India except to the territories specified therein. That being so, Rule 1 of Order XXXVII applies, by its own force, to the State of Madhya Pradesh. Clause (a) of Rule 1 confers jurisdiction to try suits based on Negotiable Instruments by summary procedure, to the High Courts at the three Presidency towns viz., by the High Courts of Calcutta, Madras and Bombay. Under Clause (b) thereof, the District Court has similar statutory jurisdiction to try such suits, and it does not depend upon special empowering in that behalf by the State Government. The summary procedure may also be adopted by other Courts, specially empowered in this behalf by the State Government. That conclusion of ours rests upon the construction that the words 'specially empowered in this behalf by the State Government occurring in Clause (b) of Rule 1 of Order XXXVII of the Code of Civil Procedure, qualify 'other Courts' and not a 'District Court'.

11. The learned District Judge had, therefore, jurisdiction to entertainand decide the suit. The defendant not having entered appearance within ten days of the service on him of a summons in Form 4 in Appendix B of the Code, and not having obtained leave from the learned District Judge to appear and defend the suit, the allegations in the plaint were rightly deemed to be admitted, and the plaintiff was entitled to a decree on the basis of the three Hundis in suit, as provided for by Order XXXVII, Rule 2 (2) of the Code of Civil Procedure.

12. In the result, the appeal fails and is dismissed. There shall, however, be no order as to costs, in the special circumstances of the case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //