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Hari Chand Mahajan Vs. Attar Chand and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 215 of 1971
Judge
Reported in9(1973)DLT519
ActsCode of Civil Procedure (CPC), 1908 - Order 37
AppellantHari Chand Mahajan
RespondentAttar Chand and Co.
Advocates: K.K. Mehra,; Satish Chander and; Maharaj Kishan, Advs
Excerpt:
.....the suit, was not exercised through the option for summary procedure under order 37 of the civil procedure code, 1908 - in view of the fact, it was ruled that it was not open to the plaintiff to contend that the suit be tried according to summary procedure - accordingly, the application was rejected - - for permission for grant of leave to defend the suit within ten days of the receipt of the summons which, in the instant case it is alleged, the defendants have not done the failure of the defendants to comply with the provisions of order 37 rule 3, civil procedure code it is contended in the application, has cast an obligation on the court to pass decree against the defendanta forthwith as the allegations in the plaint shall be deemed to have been admilted. it was further..........may, 1971, is sought to bereviewed is that the suit originally was filed under order 37 rule 2, civil procedure code but at the time the defendants were allowed to file the written statement it was not observed that the procedure applicable to the suit was a summary one the suit being a summary one. it was incumbent upon the defendants to have applied under order 37. rule 3, c.pc. for permission for grant of leave to defend the suit within ten days of the receipt of the summons which, in the instant case it is alleged, the defendants have not done the failure of the defendants to comply with the provisions of order 37 rule 3, civil procedure code it is contended in the application, has cast an obligation on the court to pass decree against the defendanta forthwith as the allegations.....
Judgment:

Prithvi Raj, J.

(1) This is plaintiff's application under Order 47 Rule 1 read with section 151 C. P. C' seeking review of the order passed by me on 10th May, 1971, whereby the defendants were allowed to file written statement in the suit. The ground on which the order dated 10th May, 1971, Is sought to bereviewed Is that the suit originally was filed under Order 37 rule 2, Civil Procedure Code but at the time the defendants were allowed to file the written statement it was not observed that the procedure applicable to the suit was a summary one The suit being a summary one. it was incumbent upon the defendants to have applied under Order 37. Rule 3, C.PC. for permission for grant of leave to defend the suit within ten days of the receipt of the summons which, in the instant case it is alleged, the defendants have not done The failure of the defendants to comply with the provisions of order 37 Rule 3, Civil Procedure Code it is contended in the application, has cast an obligation on the Court to pass decree against the defendanta forthwith as the allegations in the plaint shall be deemed to have been admilted.

(2) Defendant No. 2 on his behalf and on behalf of defendant No. 1, in reply to the application, urged that the suit as filed was under Order 33, Civil Procedure Code and not under Order 37; that the summons were issued under Order 33 Civil Procedure Code On the service of summons the defendants entered the defense. The defendants have urged that even the issues had been framed in the suit and the plaintiff did not object at the proper time. It was further averred that the plaintiff is now estopped by his conduct to raise the objection having Waived the same, if he bad any.

(3) With a view to settle the controversy raised through this application, it would be relevant to record the salient facts of the case. Hari Chand Mahajan deceased filed the suit in farm's paupers is for the recovery of R.s. 93,000.00 against the defendants. The plaint in forma pauperis was purported to have been filed under Order 37 of the Civil Procedure Code A prayer was also made in the plaint that the suit be tried under the provisions of Ordcr 37, Civil Procedure Code

(4) The forma pauperis application which was filed by Hari Chand Mahajan deceased was presented before V.D. Misra, J. who noted In his order dated the 31st. March, 1970. that the application, was presented wider Orders. Civil Procedure Code and directed that the notices be issued to the defendants for 1st May, 1970.

(5) Because the deceased Hari Chand Mahajan had filed the suit in forma Pauperies it was registered as P A. (No 5 of l970) in accordance with the provisions of Order 33, Civil Procedure Code Order 33, rule 2, Civil Procedure Code envisages that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits a schedule of any movable or immovable properly belonging to the applicant, with the estimated value thereof, shall beannexed there to; and it shall besigned and verified in the manner prescribed for the singing . and verification of pleadings. A plain regarding .of the aforesaid provision of law leaves no manner of doubt that when a person sues in/orma fauperis it Is an application for permission to sue as a pauper which be is required to file although the application shall contain .the particulars required inregard to plaints in suits and it shall besigned and verified in the manner prescribed for the singing and verification of the pleadings. This procedure was followed by the deceased though be styled the application under Order37,CPCandalso prayed that the suit be tried under the provisions of Order 37, C.P C. His styling the application underorder 37, Civil Procedure Code would rot .take the application out of the ambit of the provisions of Order 33, CP.C

(6) Rule 3 of Order 33 prescribes the procedure for presentation of a pauper application to the Court while rule 4 requires that on presentation of the application the Court may, if it thinks fit. examine the applicant regarding the merits of the claim and the property of the applicant- Under Rule 5 the court has the power to reject an application for permission to sue as a pauper if the application is covered by the exigencies indicated in clause (a) to (e) of the said Rule. According to rule 6 where the Court sees no reason to reject the application on any off the grounds, stated in rule 5, the Court is required to fix a day (of which at least ten days' clear notice shall be given to the parties) for receiving such evidence as the applicant may adduce in proof of his pauporism. After recording the evidence which is in proof of or disproof of the paupe and hearing the arguments of the parties, the Court may either allow or refuse to allow the applicant to sue as a parper.

(7) In case if the pauper, application is granted, Rule 8 of Order 33 requires that it shall be numbered and registered and shall be deemed the plaint in the suit and the suit shall procced in all other respects as a suit instituted in the ordinary manner.

(8) From the procedure laid down in Order 33, as enumerated above, it is evident that in case the pauper application is granted it sball be numbered .and registered and. be deemed plaint in the suit where after the suit shall proceed, as if it were a suit instituted in the ordinary manner In the instant case the application to suie as a pauper was rejected by my order dated 21st April, 1971, as Shri Satish Chandra, Advocate, made a statement that his client was prepared 'to pay court-fee on the value of the amount claimed in the suit. Accordingly vide my order dated the 21st April, 1971, the plaintiff was allowed 15 days time from that date to pay the court fee with a direction that if the court fee was paid within the stipulated time, the application sball be registered as a suit and put up for orders.

(9) The court fee in the case was paid on the 27th April, 1971 and the pauper application. was registered as a suit (No. 215 of 1971). The suit was listed by the office for 10th May, 1971, before me on which date Shri Satish Chandra, Advocate, put in apperance for the plaintiff-while Shri Maharaj Kishan, Advocate, (wrongly mentioned as Pt. Manmohan Kishan in the order of the said date who was already appearing fur the defendants in the pauper application, put in appearance on their behalf. Shri Maharaj Kishan on the said date wanted time to file written statement Accordingly, be was permuted to file the written statement in the registry by 27th May, 1971. with a direction that an advance copy of the same begiven to the plaintiff. A further direction was given to the plaintiff that if he so required be may file replication in the registry by 17th July, 1971. The case was directed to be listed for 22nd July, 1971.

(10) On 22nd July, 1971, the suit came up for heating before P. N. Khanna, J. However, Shri Satish Chandra. counsel for the plaintiff, requested for time to file replication. Accordingly, the case was adjourned to 23rd August, 1971, on which date Shri Satish Chandra requested for further time to file a replication. The request was allowed by P. N. Khanna, J., with a direction that replication be filed in the Registry, on the 25th August, 1971, with a copy to the defendants. It was further directed that the case should come up for framing of houses, on 26th August,1971, on which data further time was allowed for filing replication. The case was accordingly fixed for framing of issues for 30th August, 1971. On 1971. On 30th August, 1971, issues were framed in the presence of the counsel for the parties. It is significant here to note that after the paupar application was registered as a suit, on all hearings between 10th May, 1971, and 30th August 1971, when issues were framed Shri Satish Chandra had appeared in the Court for the plaintiff.

(11) It is no doubt true that the application seeking permission to sue in forma pauperis, was purported to have been made under Order 37, Civil Procedure Code . and even a prayer was made at the end that the suit be tried under the provisions of the laid order but the mere mention of the said provision at that stage, before the application was allowed or rejected, would not attract the provisions of Order 37. The application for all intents and purposes was an application under Order 33 and right uptil the time the application was either allowed or disallowed, the pro- visions of the various Rules of Order 33 were to operate.

(12) There is another aspect In the matter to be considered, namely, when the suit is entertained under the provisions of Order 37, summons to the defendant are issued in form Iv, Appendix B as provided under Order 37, Rule 2, Civil Procedure Code . which for the facility of reference is reproduced below:-No. 4.

'Summons in Summary, Suit On Negotiable Instrument (0 37, r. 2) (Title) To (Name, description and place of residence), whereas has instituted a suit against you under Order xxxvii of the Code of Civil Procedure, 1908, for Rs., balance of principal and interest due to him as the of a of which a copy is hereto annexred, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered lor you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs. and the sum of Rs. for costs (together with such interest if any, from the date of the institution of the suit as the Court may order). Leave to appear may be obtained on an application to the Court supported by affidavit or declaratian showing that there is a defense to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit. Given under my hand and the seal of the Court, this day of 10 JUDGE.'.

Notice of the forma pauperis application was not given in Iii Iv, Appendix B as prescribed under Order 37, Rule 2, C. P C but notice of the said application was issued in the following language

'In the High Court of Delhi at New Delhi Pauper Application No. 5 of 1970 Hari Chand Mahajan...petitioner/plaintiff Versus M/s. Attar Chand, Co etc. ... ...Respondent/defendant. Shri M. L. Sharma Prop. M/s Attar Chand & Co. Electric Market, Bhagirath Place, Delhi Whereas the above named petitioner has filed a suit against you and has applied to sue as a pauper, and where as the 1st day of May, 1970, (1.5.70), has been fixed for hearing the applicalion. Notice is herebu given to you that if yon desire to show cause why the petitioner should not be allowed to sue as a pauper an opportunity will be given to you of doing so on the afore mentioned date. Give under my band and the seal of the Court, this 3rd day of April, 1970. Sd/. for Assistant Registrar. '

That being to, there was no occasion for the defendants to seek leave of the Court to appear and defend the suit as required by the provisions of Sub-rule (1) of Rule (3) of Order 37, Civil Procedure Code and rightly so as the notice of the pauper application was issued to the defendants in accordance with the provisions of Order 33, Civil Procedure Code After the application was registered as a suit the plaintiff did not make any request to the Court that the suit be treated as a summary one under 0rder 37 and be tried as such. Neither the plaintiff got any summons issued to the defendants in form Iv, Appendix 'B' as prescribed under Order 37, Rule 2.

(13) Shri Maharaj Kishan, Advocate, had been appearing for the defendants from the every beginning when the pauper application was entertained and continued appearing for the defendants even after the application was refused and the same was registered as a suit. Since the summons of the suit were not got issued in form Iv, appendix 'B', the question of the defendants upon an application to the Court seek ing leave to appear and to defend the suit as required under sub-rule (i) of Rule 3 of Order 37 did not arise.

(14) Chapter Xv of the Delhi High Court (original side) Rules, 1967, prescribes the procedure in respect of suits upon bills of exchange, bundles Or promissory notes. Rule 2 of of the said Chapter requires that on the filing of the suit upon bills of exchange, hundies or promissory notes, notice shall be issued to the defendant calling upon him to obtain leave from the Court to appear and defend the suit within 20 days from the service of the said notice. It is only on the failure of the defendants to obtain leave to appear and defend the suit within 20 days from the service of the said summons that the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree as required by ruls 3 of ihe said Chapter.

(15) Since the summons were not got issued to the defendants in the prescribed from for trial of summary suits, the question of the defendants seeking; leave to appear and defend the suit within 20 day of the service of the said summons did not arise. In the circumstances it is futile for the plaintiff to contend that t.ha allegations in the plaint tee deemed to be admitted and that a decree in favor of the plaintiff on the said allegations be passed.

(16) Rule 2 (1) of Order 37, enables the plaintiff, if he so desires, to pray that the suit being upon a bill of exchange, Hundi or promissory note, be proceeded within the manner provided under Order 37. Besides, the plaintiff has to institute the suit by presenting the plaint in the form priscribed; but the summons shall be in form Iv of Appendix B or any such other form as may be from time to time prescribed. The provisions contained in Chapter Xv of the Delhi High Court (Original Side) Rules, 1967, are made applicable to a suit on bill of exchange, Hundi or promissory rote in case if the plaintiff desires to have the suit adjudicated by the summary method. A reading of Order 37. Rule 2 (11) leaves no manner of deobt that the summary procedure has to be adopted if the plaintiff desires to proceod with the suit in the manner indicated in Chapter Xv of Delhi High Court (Original Side) Rules. 1967. In other words, the plaintiff may not choose to have the suit filed upon a bill of exchange, Hundi or a promissory note adjudicated by taking advantage of the summary procedure. If that be so, the plaintiff who has the choice or taking advantage of the summary procedure under Order 37,CP.C. has also anoption not to claim benefit of that procedure. In the present case, the plaintiff after the rejection of the pauper application and the registration of the same as a, suit, did not indicate his intention to proceed With the suit accordiog to the procidure prescribed for the disposal of summary . suits in Chapter Xv of the Delhi High Court-(Original Side) Rules, 1967. Rather the. plaintiff had selected to have the suit adjudicated in the ordinary manner in which the suits are normally adjudicated by foiling to exercise his choice in favor of the summary procedure.

(17) The procedure proscribed in Chapter Xv of the: Delhi High Court. (Original Side) Rules, 1967, does not alter nature of the suit or the Jurisdiction of the Court. The plaintiff having not claimed summary procedure and having elected and participated in the suit being tried in the ordinary manner it is not open to him now to contend that the suit should have been triad according to the summary procedure; More so when even the Issues have been framed and full case of the parties has bee unfolded.

(18) For the reasons stated above the application fails and is hereby dismissid. However, ii the circumstances of the case, the parties are left to bear their own costs.


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