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Firm of Amratlal Ravjibhai Vs. Firm of Pari Parshottamdas Harivallabhadas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 77 of 1963
Judge
Reported inAIR1964Guj253; (1964)0GLR369
ActsCode of Civil Procedure (CPC) , 1908 - Sections 122 - Order 20, Rule 11(1); Constitution of India - Article 227; Ahmedabad City Civil Court Rules, 1961 - Rules 142, 142(3), 143, 143(1), 144 and 449
AppellantFirm of Amratlal Ravjibhai
RespondentFirm of Pari Parshottamdas Harivallabhadas
Appellant Advocate B.J. Bhatt, Adv.
Respondent Advocate P.V. Nanavati and; H.S. Parikh, Advs.
DispositionAppeal partly allowed
Cases ReferredC.T.K.N.S.R. M. Chettyar Firm v. O.A.O.K.C.T. Chettyar Firm
Excerpt:
(i) civil - time - section 122 order 20 rule 11 (1) of code of civil procedure, 1908, article 227 of constitution of india and rules 142, 142 (3), 143, 143 (1), 144 and 449 of ahmedabad city civil court rules, 1961 - whether judge in error in directing decree not be executable upto 10.05.1963 - largeness of amount not valid consideration for granting time to defendant to pay decretal amount - sufficient reason to be shown as to why payment of decretal amount be postponed or made by installments - judge erred in directing decree not executable upto 10.05.1963. (ii) installment - order 20 rule 11 (1) of code of civil procedure, 1908 - whether defendant can apply to court for time to pay decretal amount or for instalment in payment of decretal amount even though he had not obtained leave to.....bhagwati, j.1. this appeal raises an interesting question of law relating to the interpretation of certain rules relating to summary suits in the ahmedabad city civil court rules, 1961, made by the high court in exercise of its powers under article 227 of the constitution and section 122 of the code of civil procedure. the facts giving rise to the appeal may be briefly stated as follows: on 24th november 1962, the appellants filed summary suit no. 1317 of 1962 in the city civil court, ahmedabad, claiming to recover from the respondents a sum of rs. 1,02,600/- together with interest and costs. the suit was filed as a summary suit under the procedure prescribed for summary suits by the ahmedabad city civil court rules. two advocates were engaged by the appellants right from the date of the.....
Judgment:

Bhagwati, J.

1. This appeal raises an interesting question of law relating to the interpretation of certain rules relating to summary suits in the Ahmedabad City Civil Court Rules, 1961, made by the High Court in exercise of its powers under Article 227 of the Constitution and Section 122 of the Code of Civil Procedure. The facts giving rise to the appeal may be briefly stated as follows: On 24th November 1962, the appellants filed Summary Suit No. 1317 of 1962 in the City Civil Court, Ahmedabad, claiming to recover from the respondents a sum of Rs. 1,02,600/- together with interest and costs. The suit was filed as a summary suit under the procedure prescribed for summary suits by the Ahmedabad City Civil Court Rules. Two advocates were engaged by the appellants right from the date of the institution o the suit. The summons was served on the respondents on the same day on which the suit was instituted and on 3rd December 1962 the respondents filed their appearance and gave notice of the appearance to the appellants' advocates. Within ten days of the tiling of the appearance the appellants took out a summons' for judgment on 8th December 1962. By the summons for judgment the appellants prayed for a decree for Rs; 1,02,600/- with interest and costs. The summons for judgment came up for hearing before the City Civil Court on 20th December 1962 when an application was made on behalf of the respondents to adjourn the hearing of the summons for judgment. The hearing of the summons for judgment was accordingly adjourned for ten days. The summons for judgment thereafter came up for hearing on 10th January 1963. On that day no affidavit in reply was filed on behalf of the respondents nor was any application made on behalf of the respondents for leave to defend the suit. The only application made on behalf of the respondents was that time should be granted to the respondents for payment of the decretal amount. The learned Judge hearing the summons for judgment thereupon passed a decree on the same day i.e., 10th January 1963 for Rs. 1,02,600/- together with interest on Rs. 1,00,000/ - at the rate of four per cent per annum from the date of suit till payment and costs of the suit and directed that the decree shall not be executable upto 10th May 1963. The learned Judge allowed refund of 2/3rds of the court-fees as provided by the relevant rules and determined the pleader's fees as 1/4th of the usual fees on the basis of a single advocate. The appellants were aggrieved by two provisions of the decree passed by the learned Judge, the first provision being that the decree shall not be executable upto 10th May 1963 and the other provision being that the pleader's fees shall be 1/4th of the usual fees on the basis of a single advocate. The appellants thereupon preferred the present appeal in this Court challenging the legality of the said two provisions made in the decree passed by the learned Judge.

2. Mr. B. J. Bhatt, learned advocate appearing on behalf of the appellants, contended that under the Rules relating to summary suits in the Ahmedabad City Civil Court Rules, the respondents could not be heard at all by the learned Judge in answer to the summary suit unless the respondents asked for and obtained leave to defend the suit and since in the present case no leave to defend the suit was asked for and obtained by the respondents, the respondents were not entitled to apply to the learned Judge for time in regard to the payment of the decretal amount nor was the learned Judge entitled to grant time to the respondents on such application. The contention of Mr. B. J. Bhatt was that since leave to defend the suit was not asked for and obtained by the respondents, a decree as prayed for in the summons for judgment was bound to go against the respondents and there was no power in the learned Judge to grant tune to the respondent to make payment of the decretal amount and that the learned Judge was, therefore, in error in directing that the decree shall not be executable upto 10th May 1963. Mr. P. V. Nanavati, learned advocate appearing on behalf of the respondents, on the other hand contended that the only result of the respondents not having asked for and obtained leave to defend the suit was that the respondents were precluded from defending the suit but the right of the respondents to apply to the learned Judge at the time of passing the decree to grant time for payment of the decretal amount under Order XX, Rule 11, Sub-rule (i) of the Code of Civil Procedure was not taken away by anything contained in the rules relating to summary suits in the Ahmedabad City Civil Court Rules nor was the power of the Court under Order XX, Rule it, Sub-rule (1) affected in any manner whatsoever by any provision contained in those Rules. These rival contentions raise an important question of law relating to the procedure in summary suits and we find that there is no direct authority either of the High Court of Bombay or of this Court on that question.

3. Before we examine the validity of these rival views which were canvassed before us, it will be convenient to set out the relevant rules in the Ahmedabad City Civil Court Rules bearing upon the present controversy. The relevant rules are Rules 142, 143 and 144 which are in the following terms:

'142. Institution of summary suits upon bills of exchange, etc. (1) All suits upon bills of exchange, hundis or promissory notes and all 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 on contract express or implied, or 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 a liquidated demand only may in case the plaintiff desires to proceed hereunder, be instituted as a 'Summary Suit' and which shall contain an averment that the plaintiff is suing under the Summary Procedure under Order XXXVII of the Code of Civil Procedure.

(2) The writ of summons in a suit instituted under Sub-rule 1 above shall be in form No. 5. The plaintiff shall together with the writ of summons serve on the defendant a copy of the plaint and exhibits thereto and the defendant may at any time within ten days of such service enter an appearance. The defendant may enter an appearance either in person or by an advocate. In either case an address for service shall be given in the memorandum of appearance, and, unless otherwise ordered, all summons notices, or other judicial process required to be served on the defendant shall be deemed to have been duly served on him if left at his address for service. On the day of entering appearance, notice of the appearance shall be given to the plaintiff's advocate (or if the plaintiff sues in person to the plaintiff himself) either by notice delivered at, or sent by prepaid letter directed to, the address of the plaintiff's advocate or of the plaintiff, as the case may be.

(3) In any suit under this Rule the defendant shall not defend the suit unless he enters an appearance and obtains leave from a Judge as hereinafter provided so as to defend; and in default of his entering an appearance and of his obtaining such leave to defend, 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) to the date of the decree, and such sum, for costs as may be prescribed unless the plaintiff claims more than such fixed sum in which case the costs shall be ascertained in the ordinary way, and such decree may be executed forthwith.

143. (1) Appearance of defendant:-- In a suit filed under Order 37 of the Code of Civil Procedure if the defendant enters an appearance, or files a Vakalatnama, the plaintiff shall on affidavit made by himself, or by any other person who can swear to the facts of his own personal knowledge verifying the cause of action, and the amount claimed, and stating that in his belief there is no defence to the action, apply by summons for judgment returnable not less than ten clear days from the date of service to the Sitting Judge in Chambers for the amount claimed, together with interest (if any) and costs. The Judge may thereupon, unless the defendant by affidavit or declaration shall satisfy him that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, pass a decree for the plaintiff accordingly.

(2) Interlocutory proceedings:-- On the summons for judgment all such directions may be given and orders made for the conduct of the suit as may appear necessary to the Judge hearing the same.

(3) Default in filing appearance:-- If the defendant does not enter an appearance or file a Vakalatnama within ten days of the service upon him of the writ of summons and the plaint and exhibits thereto, the plaintiff shall be at liberty to apply to put the suit down for hearing forthwith thereafter before the Sitting Judge in Chambers. In such application the plaintiff shall state the date when the defendant was served and also state the fact of the affidavit of service of the writ of summons having been filed.

(4) When no decree applied for within a year: If the plaintiff does not apply for a decree within six months after the filing of the plaint, the suit shall be set down in the daily cause board for dismissal before the Sitting Judge in Chambers, one week before the day fixed for such dismissal. Upon the day fixed for such dismissal, the suit shall be called on before the Sitting Judge in Chambers and shall be dismissed if the plaintiff fails to appear, or appearing fails to satisfy the Judge that he has sufficient cause for not having proceeded with his suit.

144. Judgment for part of claim:-- If on the summons for judgment it appears that the defence set up by the defendant applies only to a part of the plaintiff's claim, or that any part of his claim is admitted, plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any as to suspending execution, or otherwise as the Judge may think fit.'

We may point out here that the rules in Order XXXVII of the Code of Civil Procedure which is the Order relating to procedure in summary suits prescribe a procedure which is a little different from the procedure prescribed by the rules in Ahmedabad City Civil Court Rules and this difference will have some significance when we consider a certain decision of the Bombay High Court which was cited before us and relied upon by Mr. B. J. Bhatt on behalf of the appellants.

4. The scheme to be gathered from Rules 142 to 144 is simple. When a plaintiff wants to file a suit as a summary suit he has to institute the suit by presenting a plaint which is to be intituled as a Summary Suit and which must contain an averment that the plaintiff is suing under the Summary Procedure under Order XXXVII of the Code of Civil Procedure. The writ of summons in such a suit is to be in Form No. 5 prescribed by the rules and together with the writ of summons the plaintiff is required to serve on the defendant a copy of the plaint together with the exhibits. The defendant must then enter an appearance within ten days of the service of the writ of summons upon him and on the day of entering appearance, notice of the appearance must be given by him to the plaintiff's advocate (or if the plaintiff sues in person to the plaintiff himself). If the defendant fails to enter an appearance within ten days of the service of the writ of summons, the plaintiff may apply to pat the suit down for hearing forthwith thereafter before the sitting Judge in Chambers and the allegations in the plaint would be deemed to be admitted by the defendant and the plaintiff would be entitled to a decree for a sum not exceeding the sum mentioned in the summons together with interest at the rate specified (if any) to the date of the decree and such sum for costs as may be prescribed unless the plaintiff claims more than such fixed sum, in which case the costs would have to be ascertained in the ordinary way. If, however, the defendant enters an appearance, the plaintiff has to take out a summons for judgment which is to be supported by an affidavit made by the plaintiff or by any other person verifying the cause of action and stating that in his belief there is no defence to the action. The form of summons for judgment prescribed in the rules shows that it is nothing but a summons praying that the plaintiff be at liberty to sign judgment in the suit against the defendant for the amount claimed together with interest, if any, and costs. In answer to the summons for judgment the defendant can satisfy the Court that he has a good defence to the action on the merits or disclose such facts as may be deemed sufficient to entitle him to defend and obtain leave to defend the suit. Such leave may be granted to the defendant unconditionally or may be made subject to such conditions as the Court thinks fit to impose. If leave to defend is granted by the Court, the Court would give such directions and make such orders for the conduct of the suit as may appear necessary to the Court, for leave to defend being granted, lie defendant would be entitled to defend the suit in such manner as he thinks fit. If, however, the Court is not satisfied that the defendant has a good defence to the action on the merits or such facts are not disclosed by the defendant as may be deemed by the Court sufficient to entitle the defendant to defend the suit, the Court would not grant to the defendant leave to defend the suit and in that event the defendant would be precluded from defending the suit and the allegations in the plaint would be deemed to be admitted by the defendant and the plaintiff would be entitled to a decree for the amount claimed together with interest, if any and costs. The summons for judgment would thus result either in the defendant being granted leave to defend the suit or in a decree being passed in favour of the plaintiff against the defendant. This is broadly the scheme of the Rules and it is clear from this scheme that when a summary suit is filed by the plaintiff against the defendant, the defendant must file an appearance within ten days of the service of the writ of summons upon him and apply for and obtain leave to defend the suit when the summons for judgment is taken out by the plaintiff: and served upon him. The defendant cannot defend the suit unless he obtains leave to defend on the summons for judgment and if he fails to obtain such leave' to defend, the allegations in the plaint would be deemed to be admitted by him and there would be a decree against him as prayed for in the summons for judgment. This last proposition is the logical consequence of the defendant not being permitted to defend the suit for it is obvious that if the defendant cannot be permitted to defend the suit, the allegations in the plaint must be deemed, to be admitted and a decree as prayed for in the summons for judgment must be passed against the defendant. But this analysis clearly shows that the only limitation on the right of the defendant to be heard in answer to the summary suit is that he cannot defend the suit unless he files an appearance within ten days of the service of the writ of summons and applies for and obtains leave to defend the suit when the summons for judgment is taken out by the plaintiff and served upon him and this is made amply clear by Rule 142, Sub-rule (3). The defendant is not precluded from making any application to the Court in a summary suit which does not amount to defending the suit. If this position is borne in mind it is really not at all difficult to arrive at a solution of the present controversy between the parties.

5. The question which falls for determination is as to whether the defendant can at the time when the Court is passing a decree against the defendant on the summons for judgment apply to the Court for time to pay the decretal amount or for instalments in payment of the decretal amount even though he has not obtained leave to defend the suit.

Now the power of the Court to grant time for payment of the decretal amount or to make the decretal amount payable by instalments is to be found in Order XX, Rule 11 of the Code of Civil Procedure. We are concerned only with Sub-rule (1) of that Rule for the purpose of the present appeal, for Sub-rule (2) deals, with a case where an application is made by a defendant for time to pay the decretal amount or for instalments in payment of the decretal amount after the decree has been passed and the suit has terminated. Sub-rule (1) deals with the power of the Court to grant tune for payment of the decretal amount or to make the decretal amount payable by instalments, at the time of passing the decree. The sub-rule is in the following terms:

'11. (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.'

This sub-rule empowers the Court to order at the time of passing the decree for any sufficient reason that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable. The Court may make such an order for any sufficient reason which may appear to it at the time of passing the decree and such sufficient reason may appear to the Court suo motu from the record or it may be shown to the Court by the defendant, The defendant has thus clearly a right under Order XX, Rule 11, Sub-rule (1) to apply to the Court at the time of passing the decree that the payment of the amount decreed may be postponed or may be made by instalments and the defendant may point out to the Court sufficient reason for granting such application. Now Order XX, Rule 11, Sub-rule (1) is in general terms and applies to all suits and it must, therefore, apply to summary suits unless there is something to be found in the rules prescribing the procedure for summary suits which precludes the applicability of that sub-rule to summary suits. Mr. B. J. Bhatt on behalf of the appellants contended that Rules 142, 143 and 144 of the Ahmedabad City Civil Court Rules which regulated the procedure relating to summary suits excluded the applicability of Order XX, Rule 11, Sub-rule (1) and that a defendant who had not obtained leave to defend the suit was not entitled to avail himself of the provisions enacted in Order XX, Rule 11, Sub-rule (1) and to apply to the Court passing a decree on the summons for judgment that payment of the decretal amount should be postponed or should be made by instalments. Mr. B. J. Bhatt in support of this contention leaned heavily on the provisions contained in Rule 142, Sub-rule (3), Rule 143, Sub-rule (1) and Rule 144. But as we shall presently point out, we do not find anything in these rules which in any way takes away the right of the defendant under Order XX, Rule 11, Sub-rule (1) or negatives the applicability of Order XX, Rule 11, Sub-rule (1) to summary suits.

6. Turning first to Rule 142, Sub-rule (3), the contentions of Mr. B.J. Bhatt based on this Sub-rule was that inasmuch as this sub-rule provided that in default of the defendant entering an appearance and obtaining leave to defend the suit the plaintiff shall be entitled to a decree against the defendant and such decree may be executed forthwith,' the intention of the rule-making authority was clear that the decree which might be passed against the defendant on his failing to enter an appearance or to obtain leave to defend the suit should be executable forthwith and if such decree was to be executable forthwith; how could the Court, argued Mr. B. J. Bhatt, order that the payment of the decretal amount shall be postponed or, shall be made by instalments. Mr. B. J. Bhatt contended 'that such an order would conflict with the provision in Rule 142, Sub-rule (3); which lays down that the decree may be executed forthwith. This contention of Mr. B. J. Bhatt is in, our opinion without any substance. The provision in Rule 142, Sub-rule (3) that the decree may be executed forthwith does not have the meaning or effect which Mr. B. J. Bhatt wants to attribute to it. All that this provision means is that if the decree is otherwise on its own terms executable, there shall be no impediment in the execution of such decree, and that such decree may be executed forthwith. This provision does not contain any injunction to the Court that the decree to be passed by the Court shall be such that it is executable forthwith. The power of the Court to grant time for payment of the decretal amount or to make it payable by instalments is not taken away by anything contained in Rule 142, Sub-rule (3).

7. Mr. B.J. Bhatt next relied on Rule 143, Sub-rule (1). Mr. B. J. Bhatt contended that this sub-rule provided that in a suit filed as a summary suit, if the defendant, entered an appearance or filed a Vakalatnama, the plaintiff was entitled to apply to the Court by summons for judgment for the amount claimed together with interest, if any, and costs and on the summons for judgment the Court was entitled unless the defendant by affidavit or declaration satisfied the Court that he has good defence to the action on the merits or disclosed such facts as might be deemed 'sufficient to entitle him to defend, to pass a decree for the plaintiff accordingly. Mr. B.J. Bhatt laid great emphasis on the word 'accordingly' and urged that this sub-rule clearly showed that unless the defendant obtained leave to defend the suit, the Court was bound to pass a decree for the plaintiffs according to the grayer in the summons for judgment and since the prayer in the summons for judgment 'would be for immediate payment, the Court was bound to pass a decree for immediate payment to the plaintiff and consequently by necessary implication the power of the Court to grant time for payment of the decretal amount or to make the decretal amount payable by instalments was taken away. This contention is also, in bur opinion, unsound. It is based on a misreading of the word 'accordingly' occurring in this sub-rule. The word 'accordingly' is no doubt used in reference to the prayer in the summons for judgment but it must be remembered that in the summons for judgment the prayer is that the plaintiff be at liberty to sigh judgment against the defendant for the amount claimed together with interest, if any, and costs. The plaintiff would, therefore under this sub-rule be entitled to obtain a decree against the defendant for the amount claimed together with interest, if any, and costs as prayedfor in the summons for judgment in the event ofthe defendant not obtaining leave to defend thesuit. But the manner in which the decretal amount shall be payable is a matter which would not be covered by anything, contained in this sub-rule.

8. Mr. B. J. Bhatt, then drew our attention to Rule 144 which provides that if on the summons for judgment. It appears to the Court that the defence set up by the defendant applies only to a part of the plaintiff's claim or that any part of his claim is admitted; the plaintiff shall be entitled to have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, and while passing such judgment the Court may impose such terms, if any, as to suspension of execution or otherwise as the Court might think fit and contended, relying on this rule, that where the rule making authority wanted to confer power on the Court to suspend execution or to impose such other terms as the Court might think fit while passing judgment, such power was conferred in express terms as in this rule but no such power was conferred on the Court while passing a decree for the entire claim of the plaintiff under Rule 142, Sub-rule (3) and on the contrary a provision was made that such decree may be executed forthwith. Mr. B. J. Bhatt urged that this was a clear indication of the legislative intent that while passing a decree on the summpos for judgment the Court should not have power to grant time for payment of the decretal amount or to make the decretal amount payable by instalments. We cannot accept this contention. It must be remembered that Rule 144 deals with a case where the Court may pass judgment for part of the claim made by the plaintiff against the defendant either because the defence set up by the defendant does not apply to that part of the claim or because that part of the claim is admitted by the defendant. In such case since the other part of the claim remains to be adjudicated upon and would be adjudicated upon at a later date, the Court is empowered while passing judgment for the part of the claim to which the defence does not apply or which is admitted to impose such terms as to suspension of execution or otherwise, as the Court might think fit. But such a provision obviously would not be necessary when the judgment is going to be entered for the plaintiff for the whole of the plaintiff's claim. In such a case Order XX, Rule 11 Sub-rule (1) would apply and the defendant would always be entitled to ask the Court at the time of passing of the decree to postpone payment of the decretal amount or to make it payable by instalments. No implication can, therefore, be drawn from the absence of such a provision in Rule 143, Sub-rule (3) that the power of the Court under Order XX, Rule 11, Sub-rule (1) to grant time for payment of tile decretal amount or to make it payable by instalments was intended to be taken away by the rule making authority.

9. Apart from the provisions of Rule 142, Sub-rule (3), Rule 143, Sub-rule (1) and Rule 144, Mr.B. J. Bhatt was not able to draw our attentionto any other provisions in the Rules which wouldeven, remotely, support the argument that the power of the Court under Order XX, Rule 11, Sub-rule (1) to grant time for payment of the decretal amount or to make it payable by instalments' was taken away in case of summary suits The only provisions of the rules relied upon by Mr. B. J. Bhatt were, there three; but as we have pointed out above, there is nothing in these provisions which in any way derogates from the power of the Court under Order XX, Rule 11, Sub-rule (1) to postpone payment of the decretal amount or to make it payable by instalments. Mr. B.J. Bhatt realising this difficulty fell back on the argument that unless a defendant obtains leave to defend the suit, he cannot be heard even in support of an application to grant time for payment of the decretal amount or to make the decretal amount payable by instalments and the Court cannot, therefore, acting under Order XX, Rule 11, Sub-rule (1) grant tune for payment of the decretal amount or make the decretal amount payable by instalments. But this argument stands answered by what we have said above in regard to the scheme of the Rules. The only limitation imposed by the Rules on the right of the defendant to be heard in answer to the summary suit is that the defendant cannot defend the suit unless he files an appearance and obtains leave to defend the suit. But when the defendant makes an application to the Court at the time of passing the decree that time should be given to him for payment of the decretal amount or that the decretal amount should be made payable by instalments, he does not seek to defend the suit. All that he does is to tell the Court that be cannot defend the suit because leave to do so is not granted to him and that a decree may, therefore, go against him, but payment of the amount of the decree may be postponed or may be made by instalments. An application to the Court for time for payment of the decretal amount or for instalments in payment of the decretal amount cannot be regarded as part of defence to the suit and no leave to defend the suit is necessary before the defendant can make such an application to the Court. If such an application were treated as part of defence to the suit, an anomalous situation would arise inasmuch as in that event the defendant would be entitled to obtain leave to defend the suit on the mere ground that he has a good case for time or for instalments, though he might have no defence to the suit and on such a ground the defendant would be able to deprive the plaintiff of an immediate decree. Once leave to defend is obtained by the defendant on the ground that he has a good case for tune or for instalments, directions would have to be given by the Court for the conduct of the suit and the defendant would then be entitled to defend the suit on any ground that he likes. We are of the view that an application made to the Court under Order XX, Rule 11, Sub-rule (1) for time to pay the decretal amount or for instalments for payment of the decretal amount is not tantamount to defending the suit and that the defendant is not precluded from making such an application at the time of passing of the decree on the summons for judgment on the ground that the defendant has not obtained leave to defend the suit.

10. We find that this view which we are taking as regards the true construction of the rules prescribing the procedure relating to summary suits has also been taken by Tendolkar, J., in Jagannath Murlidhar v. Rupchand, 56 Bom LR 916. There the question was whether the defendant was entitled to make an application to the Court for recording a compromise under Order XXIII, Rule 3, without obtaining leave to defend the suit. The learned Judge held that the only restriction on the right of the defendant when he did hot obtain leave to defend the suit was that he was precluded from defending the suit and where a defendant sought to have a compromise recorded under Order XXIII, Rule 3, he was not defending the suit on the merits and it was, therefore, not necessary for him to obtain leave to defend the suit for the purpose of recording such compromise.. In the same way a defendant in a summary suit can at the time of passing of the decree on the summons for judgment apply to the Court under Order XX, Rule 11, sub-rule (1) that payment of the decretal amount shall be postponed or shall be made by instalments even though he has not obtained leave to defend the suit. This right of the defendant to apply and the corresponding power of the Court to order that payment of the decretal amount shall be postponed or shall be made by instalments are not taken away by anything contained in the rules prescribing the procedure for summary suite.

11. Mr. B. J. Bhatt cited before us a decision of a Division Bench of the High Court of Bombay in Pestonji v. Jamshedji : AIR1926Bom250 and contended, relying on this decision, that a defendant who has not obtained leave to defend the suit, is not entitled to appear at the hearing and to ask the Court to make the decretal amount payable by instalments. It is no doubt true that in this decision a Division Bench of the High Court of Bombay consisting of Macleod C.J. and Coyajee J., held that in a summary suit brought under the provisions of Order XXXVII of the Code of Civil Procedure, a defendant, who has not obtained leave to defend cannot appear at the hearing and ask the Court to make the decretal amount payable by instalments. But it is evident from the judgment that this decision was based on the provisions of Order XXXVII of the Code of Civil Procedure. The procedure prescribed by Order XXXVII of the Code of Civil Procedure is a little different from the procedure prescribed by the Ahmedabad City Civil Court Rules. Under Order XXXVII of the Code of Civil Procedure, after the service of the summons on the defendant, the defendant has to apply to the Court, within ten days of the service upon him of the writ, for leave to appear and defend the suit and unless the defendant obtains leave from the Court to appear and defend the suit, the defendant cannot appear or defend the suit. The procedure in the Ahmedabad City Civil Court Rules is different in that under the Ahmedabad City Civil Court Rules the defendant is entitled as of right to file his appearance within ten days of the service of the summons upon Km and the plaintiff has then to take out a summons for judgment and on the summons for judgment the defendant may apply for leave to defend the suit; if leave to defend the suit is granted, direction are given and orders are made, by the Court in regard to the conduct of the suit and if leave to defend is not granted a decree is passed in favour of the plaintiff on the summons for judgment. The only question which therefore, arises on the summons for judgment is whether the defendant should be granted leave to defend the suit. The right of the defendant to appear is not dependent on the obtaining of the leave from the Court but the defendant is entitled to appear as a matter of right and to make his submissions before the Court, the only limitation on his right being that he cannot defend the suit unless he has obtained leave to defend. Under Order XXXVII of the Code of Civil Procedure, however, the defendant cannot even appear unless he has obtained leave of the Court to appear on an application made by him within ten days of the service of the writ of summons upon him. It was because of this peculiar feature of the procedure prescribed under Order XXXVII of the Code of Civil Procedure that the Division Bench of the High Court of Bombay held that a defendant who had not obtained leave to appear and defend the suit was not entitled to appear at the hearing and ask the Court to make the decretal amount payable by instalments. The reasoning of the learned Judges of the Division Bench was that the defendant was not entitled to appear or defend the suit unless he obtained leave of the Court so to appear and defend and since the defendant had not obtained leave of the Court to appear and defend the suit, the defendant was not entitled to appear at the hearing of the suit and if he was not entitled to appear at the hearing of the suit, be was obviously not entitled to make an application to the Court as a part of the process of hearing. This is what Macleod C. J. observed:

'That Sub-rule (1) clearly contemplates that the application for instalments should be part of the hearing and an order made simultaneously with the decree. Ordinarily speaking then, a person who cannot appear at the hearing cannot be allowed to appear in order to apply for payment of the decretal amount by instalments.'

This reasoning ' cannot apply when the procedure relating to summary suits is not that contained in Order XXXVII of the Code of Civil Procedure but is a different procedure prescribed under the Ahmedabad City Civil Court Rules. This decision cannot, therefore, be called in aid by Mr. B. J. Bhatt on behalf of the appellants.

12. Our attention was also drawn to a decision of the Rangoon High Court in C.T.K.N.S.R. M. Chettyar Firm v. O.A.O.K.C.T. Chettyar Firm, AIR 1933 Rang 245. The reasoning in that decision commends itself to us and we have reached our conclusion following substantially the same reasoning. Of course so far as the actual conclusion is concerned the decision of the Rangoon High Court runs counter to the decision of the High Court of Bombay in the case to which we have just referred, for the decision of the Rangoon High) Court was also based on the provisions of Order XXXVII of the Code of Civil Procedure like the decision of the High Court of Bombay. But we are not concerned with the actual conclusion reached either by the Rangoon: High Court or by the High Court of Bombay, for the rules with which we are concerned prescribe a procedure different from that prescribed by Order XXXVII of the Code of Civil Procedure. The reasoning on which the decision of the Rangoon High Court is found ed however appears to us to be correct and we have no hesitation in accepting the same.

13. In this view of the matter it must be held that the respondents in the present case were entitled to apply to the learned Judge, at the time of passing the decree on the summons for judgment, under Order XX, Rule 11, Sub-rule (1) that payment of the decretal amount should be postponed and the learned Judge had power under Order XX, Rule 11, Sub-rule (1) to make an order that payment of the decretal amount shall be postponed upto a particular date, even through the respondents did not apply for and obtain leaver to defend the suit. The question, however, remain whether the learned Judge was right in exercising his power under Order XX, Rule 11, Sub-rule (1). Mr. B.J. Bhatt pointed out that there was absolutely no material on the record on the basis at which the learned Judge could exercise his discretion and order that the decree shall not be executable upto 10th May 1963. Mr. P.V. Nanavati frankly conceded that such was the position. The only thing which he could urge in support of the order of the learned Judge was that the decretal amount was a large amount and that the learned Judge was entitled to take the largeness of the amount into consideration in directing that the decree shall not be executable upto 10th May 1963. We cannot agree with this contention of Mr. P.V. Nanayati. Mere largeness of the amount cannot by itself be a valid consideration for granting time to the defendant to pay the decretal amount. If the defendant wants the Court to exercise its power under Order XX, Rule 11, Sub-rule (r), the defendant must bring to the notice of the Court material on the basis of which the Court can be called upon to exercise its discretion, The material may already exist on the record of the case or the defendant may produce material before the Court in the shape of affidavit or otherwise to satisfy the Court that there is sufficient reason why payment of the decretal amount should be postponed or should be made by instalments. But in the absence of any such material, on a mere statement by the advocate appearing on behalf of the defendant, the Court cannot make an order that payment of the decretal amount shall be postponed or shall be made by instalments. Here there was absolutely no material before the learned Judge and the learned Judge was, therefore, in error in directing that the decree shall not be executable upto 10th May 1063. That part of the decree must, therefore, be set aside.

14. The other part of the decree to which Mr. B. J. Bhatt objected was that which provided that the pleader's fees shall be 1/4th of the usual fees on the basis of a single advocate. The objection in this part of the decree is, however, not well-founded. Rule 449 of the Ahmedabad City Civil Court Rules deals with the question of costs in proceedings before the City Civil Court and pro-vides that the costs of an advocate or pleader shall be taxed in accordance with the Rules framed by the High Court under Section 16 of the Bar Councils Act or Section 31 of the Bombay Pleaders' Act. In this case it was common ground that advocates were engaged on either side and not pleaders. The question of costs would, therefore, have to be decided by reference to the Rules framed by the High Court under Section 16 of the Bar Councils Act. Turning to the Rules framed by the High Court under Section 16, of the Bar Council Act, we find that by Rule 1 of Chapter XIV it is provided that where costs are awarded to a party in any proceeding, the amount of the advocate's fees to be taxed in the bill of costs recoverable by such party, if represented by an advocate, from his adversary, shall be computed in accordance with the rules in Schedule A annexed to that Chapter. Rule I in Schedule A provides a certain scale of fees in suits which decide on the merits the real dispute dispute between the parties. Rule II declares that in suits in which the real dispute between the parties is not decided on the merits and in all other cases not otherwise provided for, the amount of advocate's fees shall be 1/4th of that payable according to the rates prescribed in Rule I. Now so far as the present suit is concerned it ended in a decree on the summons for judgment since no leave to defend the suit was applied for and obtained by the defendant. It could not therefore, be said that the real dispute between the parties was decided on the merits. Rule I of the Schedule did not, therefore apply to the present suit and it was governed by Rule II. The amount of advocate's fees to be allowed was therefore, rightly ordered by the learned Judge to be 1/4th of that payable according to the rates prescribed in Rule I which would be the usual rates in suits which decide on the merits the real dispute between the parties. On the question whether advocate's fees should have been allowed on the basis of a single advocate or on the basis of two advocates, we asked Mr. B.J. Bhatt whether he was able to point, out any provision under which the plaintiffs were entitled to costs on the basis of two advocates but he was not in a position to point out any. The only provision in the Rules under which a party who has engaged more than one advocate is entitled to advocate's fee on the basis of two advocates is that contained in Rule II of Chapter XIV of the Rules made under Section 16 of the Bar Councils Act but that rule is by its express terms applicable only to an appeal and does not apply to a suit. There is no provision in the rules under which a plaintiff in a suit is entitled to have the fees of two advocates taxed in the bill of costs recoverable by him from the defendant. The leaned Judge was, therefore, right in directing that the advocate's fees shall be taxed on the basis of a single advocate. This objection urged by Mr. B.J. Bhatt on behalf of the plaintiff to the decree passed by the learned Judge must, therefore, fail.

15. In the result we allow the appeal is part and direct that the provision in, the decree passed by the learned Judge that the decree shall not be executable upto 10th May 1963 shall be deleted. The rest of the decree will stand confirmed. There will be no order as to costs of the appeal.


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