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Sam M. Haeems Vs. Samson J. BenjamIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR934
AppellantSam M. Haeems
RespondentSamson J. BenjamIn and ors.
Excerpt:
- - 15 0 the learned judge further directed that if the first defendant failed to furnish such security he should be entitled to defend the suit only to the extent of rs. 742 of 1963 that it was not competent to a judge of the city civil court to impose any conditions while granting leave to defendant and that the conditional order made by the learned judge was therefore bad. (4) at the hearing of such summons for judgment if (a) 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 if (b) the defendant be permitted to defend as to the whole or any part of the claim the judge shall direct that on failure to complete the security (if any) or to carry out such other directions as the.....p.n. bhagwati, j.1. the question which arises in these revision applications is whether it is competent to a judge of the city civil court to pass a conditional order when granting leave to defend under the provisions of rule 142 sub-rule (3) of the ahmedabad city civil court rules. the plaintiffs filed a suit being summary suit no. 1462 of 1962 against the defendants in the city civil court ahmedabad to recover a sum of rs. 32 0 alleged to be due by the defendants to the plaintiffs under certain promissory notes which the plaintiffs claimed had been executed by the defendants in favour of the plaintiffs. the suit was filed as a summary suit and on the appearance being filed by the defendants a summons for judgment was taken out by the plaintiffs. on the summons for judgment the learned.....
Judgment:

P.N. Bhagwati, J.

1. The question which arises in these Revision Applications is whether it is competent to a Judge of the City Civil Court to pass a conditional order when granting leave to defend under the provisions of Rule 142 Sub-rule (3) of the Ahmedabad City Civil Court Rules. The plaintiffs filed a suit being Summary Suit No. 1462 of 1962 against the defendants in the City Civil Court Ahmedabad to recover a sum of Rs. 32 0 alleged to be due by the defendants to the plaintiffs under certain promissory notes which the plaintiffs claimed had been executed by the defendants in favour of the plaintiffs. The suit was filed as a Summary Suit and on the appearance being filed by the defendants a Summons for Judgment was taken out by the plaintiffs. On the Summons for Judgment the learned Judge granted unconditional leave to defend to the second defendant but so far as the first defendant was concerned the learned Judge made a conditional order granting leave to defend on c condition that the first defendant furnished security in the sum of Rs. 15 0 The learned Judge further directed that if the first defendant failed to furnish such security he should be entitled to defend the suit only to the extent of Rs. 17 0 but if such security were furnished he would be at liberty to defend the entire claim. The first defendant was aggrieved by this order and he therefore preFerred Civil Revision Application No. 742 of 1963 and the plaintiffs also being aggrieved by this order preferred Civil Revision Application No. 887 of 1963. When these Revision Applications came up for hearing before Divan J. a point was raised on behalf of the first defendant in Civil Revision Application No. 742 of 1963 that it was not competent to a Judge of the City Civil Court to impose any conditions while granting leave to defendant and that the conditional order made by the learned Judge was therefore bad. Since this was a question of considerable importance affecting the practice and procedure of the City Civil Court Divan J. referred the question to a Division Bench and that is how these Revision Applications came up for hearing before us. But besides these Revision Applications there were also other Revision Applications in which the same question is involved and we therefore had those Revision Applications placed on Board for the purpose of enabling the learned advocates appearing on behalf of the parties in those eases to make their submissions sand we heard what they had to say in regard to the merits of the question. We also heard Mr. M.C. Shah learned advocate appearing on behalf of the petitioner in Civil Revision Application No. 1116 of 1951 though that Revision Application was not on Board since an identical question is involved in that Revision Application.

2. In order to appreciate the rival contentions urged in regard to the question before us it is necessary to refer to a few provisions of the Code of Civil Procedure and the Ahmedabad City Civil Court Rules. The Code of Civil Procedure was enacted with a view to consolidating and amending the laws relating to the procedure of Courts of civil judicature. By virtue of Sub-section (2) of Section 1 the Code came into force on 1st January 1909. Sub-section (3) of Section 1 as it stood at the material time provided that the Code shall extend to the whole of India except (a) the Tribal areas in the State of Assam; (b) save as otherwise provided by the proviso the Scheduled Areas in the State of Madras and (c) the State of Jammu and Kashmir. The proviso to Sub-section (3) of Section 1 extended certain provisions of the Code to some of the territories within the Scheduled Areas in the State of Madras but it is not necessary to make any detailed reference to the same for the purpose of the present discussion. The Code was thus brought into force in the whole of India including the former State of Bombay barring only the excepted territories referred to in Sub-section (3) of Section 1. Now the Code is divided into two parts on Two lines of the Judicature Acts in England and the Rules made under those Acts. The first part consists of sections which constitute the main body of the Code and the second part consists of Rules set out in the First Schedule which refer merely to matters of machinery for working out the main provisions enacted in the sections. Taking first the sections we may straight go to Part X of the Code which is headed Rules and which consists of Sections 121 to 131. Section 121 enacts that the rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of part X. Section 122 then confers power on the High Court to make rules and by such rules to annul alter or add to all or any of the rules in the First Schedule and that section reads as follows:

122. Power of certain High Courts to make rules: High Courts not being the Court of a Judicial Commissioner may from time to time after previous publication make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence and may by such rules annul alter or add to all or any of the rules in the First Schedule.

Sections 123 to 127 lay down the procedure for making of rules under Section 122 and Section 128 says that the rules so made shall not be inconsistent with the provisions in the body of the Code but subject thereto may provide for any matters relating to the procedure of Civil Courts including summary procedure. Sections 129 to 131 are not material and we need not therefore dwell on them Turning now to the Rules in the First Schedule we find that the Rules are classified in various Orders. There are as many as 51 Orders but the only Order with which we are concerned in the present Revision Applications is Order 37 which prescribes Summary Procedure. Rule 1 of that Order provides

1. Application of Order: This Order shall apply only to

(a) the High Courts of Judicature at Fort William Madras and Bombay;

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

(c) ...

(d) any other Court to which Sections 532 to 537 of the Code of Civil Procedure 1882 have been already applied.

Then follow Rules 2 and 3 which lay down the actual procedure and then we have Rule 4 which says

4. Power to set aside decree: After decree the Court may under special circumstances set aside the decree and if necessary stay or set aside execution and may give leave to the defendant to appear to the summons and to defend the suit if it seems reasonable to the Court so to do and on such terms as the Court thinks fit.

Thereafter comes Rule 5 which empowers the Court in any proceeding under that Order to order the bill hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court as also to direct that all proceedings shall be stayed until the plaintiff gives security for the costs thereof. Rule 6 gives the holder of every dishonoured bill of exchange or promissory note the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or nonpayment or otherwise by reason of such dishonour as he has under that Order for the recovery of the amount of such bill or note. The last Rule in that Order namely Rule 7 enacts as follows:

7. Procedure in suits: Save as provided by this Order the procedure in suits here under shall be the same as the procedure in suits instituted in the ordinary manner.

Now on 29th September 1936 the High Court of Bombay in exercise of its powers under Section 122 made Rules substituting the following Sub-rules (1) and (2) for the existing Sub-rules (1) and (2) of Rule 2 in Order 37 of the Code:

2 (1) All suits upon bills of exchange hundis or promissory note and all suits to 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 on an enactment where the sums ought 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 or in suits in which the landlord seeks to recover possession of immovable property with or without a claim for rent or mesne profits against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant 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 be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms respectively the defendant shall not defend the suit unless he enters an appearance and obtains leave from a judge as 4hereinafter provided so 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 possession and/or as the case may be 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.

The Bombay High Court also thereafter on 9th August 1940 made further Rules in exercise of its powers under 122 deleting Sub-rule (3) of the existing Rule 3:

3.(1) The Plaintiff shall together with the writ of summons under Rule 2 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 attorney. In either case an address for service shall be given in the memorandum of appearance and unless otherwise ordered all summonses 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 plaintiffs attorney (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 plaintiffs attorney or of the plaintiff as the case may be.

(2) If the defendant enters an appearance the plaintiff shall thereafter serve on the defendant a summons for judgment returnable not less than ten clear 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.

(3) 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 the suit. Leave to defend may be granted to him unconditionally or upon such terms as to the Judge appear just.

(4) At the hearing of such summons for judgment if (a) 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 if (b) the defendant be permitted to defend as to the whole or any part of the claiM the Judge shall direct that on failure to complete the security (if any) or to carry out such other directions as the judge may have given within the time limited in the order the plaintiff shall be entitled to judgment forthwith.

(5) The provisions of Section 5 of the Indian Limitation Act 1908 shall apply to taken under this rule.

This was the state of the law when the State of Bombay was bifurcated by the Bombay Reorganization Act 1960.

3. By the Bombay Reorganization Act 1960 certain territories were carved out from the State of Bombay and were constituted into the State of Gujarat from 1st May 1960 and the State of Bombay with the residuary territories continued as the State of Maharashtra. On 15th May 1961 the Legislature of the State of Gujarat passed the Ahmedabad City Courts Act 1961 providing for the constitution of City Civil Court for the City of Ahmedabad. Pursuant to this Act the City Civil Court was established by the State Government with effect from 4th November 1961 by a notification issued under Section 3 of the Act. The State Government also issued a notification dated 4th November 1961 in exercise of its powers under Clause (b) of Rule 1 of Order 37 of the Code specially empowering the City Civil Court. The Gujarat High Court also in its turn made Rules for the City Civil Court called? The Ahmedabad City Civil Court Rules in exercise of its powers under Article 227 of the Constitution and Section 122 of the Code and all other powers enabling it to make such Rules. The Ahmedabad City Civil Court Rules contain Chapter XI which is headed Summary Suits and this Chapter contains various Rules numbering from 142 to 148. Since a considerable part of the argument has turned on the construction of these Rules it will be desirable to set out some of the important Rules in extenso. Rule 142 Sub-rules (1)(2) and (3) and Rule 143 Sub-rule (1) read as follows:

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 by presenting a plaint which shall 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 be 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 plaintiffs Advocate (or if the plaintiff sues in person to the plaintiff himself) either by notice deliver: d at or sent by prepaid letter directed to the address of the plaintiffs 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 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 Appearance of defendant: (1) 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 acts as may be deemed sufficient to entitle him to defend pass a decree for the plaintiff accordingly..

Form No. 5 referred to in Rule 142 Sub-rule (2) as the Form in which the writ of summons should be issued in a suit instituted under Rule 142 Sub-rule (1) is in the following terms:

'FORM NO. 5'

IN THE AHMEDABAD CITY CIVIL COURT.

Plaintiff

versus

Defendant.

Rule 49 Summons under Whereas...has instituted a suit

Order XXXVII of the against under Order XXXVII you

Code of Civil Procedure. Rule 2 of the Code of 1908 for Rs...for...

and interest a copy Civil Procedure of the

plaint whereof is herewith supplied or

(as the case may be 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 at any time after the

expiration of such ten days to obtain a

decree for any sum not exceeding the sum

of Rs.... and such amount as the Court may

award 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 ask 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 suit.

This... day of... 19.

Sealed.

The... day of... 19.

Plaintiffs Advocate. for Registrar.

It is on the basis of these Rules that we have to decide the plea raised on behalf of the first defendant that a Judge of the City Civil Court while granting leave to defend has no power to impose any conditions as to giving of security or otherwise and that the leave to be granted must be unconditional leave to defend.

4. Now two contentions were advanced in support of the plea that a Judge of the City Civil Court has no power to make a conditional order while granting leave to defend a summary suit. The first contention proceeded on the following lines. It was urged that so far as the City Civil Court was concerned the entire procedure in regard to summary suits was to be found in Rules 142 to 148 of the Ahmedabad City Civil Courts Rules and that no resort could be had to any provision of Order 37 of the Code for the purpose of determining the procedure applicable in summary suits filed in the City Civil Court. Founded on this premise the argument was that though Rule 142 Sub-rule (3) provided that in any suit under that Rule the defendant shall not defend the suit unless he enters an appearance and obtains leave from the Judge as hereinafter provided so to defend there was in fact no provision in the Ahmedabad City Civil Court Rules following upon that Rule which provided for the defendant obtaining leave from the Judge or the Judge granting leave to the defendant and the provision enacted in Rule 142 Sub-rule (3) was therefore ineffective and futile. Another argument put forward as a branch of the same contention was that in any event there was no provision in the Ahmedabad City Civil Court Rules which empowered a Judge to grant conditional leave to defend and that even if a power to grant leave to defend could be spelt out by necessary implication from the language used in Rule 142 Sub-rule (3) such power could only be to grant unconditional leave to defend and not to impose any conditions while granting leave to defend. The second contention was that in any event even if the view was taken that Rules 142 to 148 did not constitute an exclusive body of Rules governing the procedure in summary suits filed in the City Civil Court and that they were required to be read along with the Rules in Order 37 which were applicable were not the Rules as amended by the Bombay High Court but the Rules as originally enacted in the Code and that since the Rules in Order 37 as originally enacted did not confer any power on the Judge to grant conditional leave to defend in cases where the procedure was as set out in Rules 142 and 143 no power to grant conditional leave to defend could be said to exist. To these contentions a two-fold answer was given on behalf of the plaintiffs. In the first place it was argued that the Rules in Order 37 as amended by the Bombay High Court were law in force within the territories now forming the State of Gujarat (hereinafter referred to as the Gujarat territories) prior to the bifurcation of the State of Bombay and that they therefore continued in force by virtue of Section 87 of the Bombay Reorganization Act 1960 and when the notification dated 4th November 1961 was issued by the Gujarat High Court under Clause (b) of Rule 1 of Order 37 the amended Rules in Order 37 became applicable to the City Civil Court. But at the same time the Ahmedabad City Civil Court Rules were made by the Gujarat High Court in exercise of its powers under Section 122 and the amended Rules in Order 37 were therefore required to be read along with the Ahmedabad City Civil Court Rules and particularly Rules 142 to 148. If the two sets of Rules were read together the conclusion was irresistible that a Judge dealing with a Summons for Judgment in a summary suit had by virtue of Sub-rule (3) of Rule 3 of Order 37 power to grant conditional leave to defend. This was the first answer given on behalf of the plaintiffs. It was also contended on behalf of the plaintiffs in the alternative and that was the second answer that in any event even if Sub-rule (3) of Rule 3 of Order 37 could not be availed of for the purpose of reading a power in the Judge to grant conditional leave to defend such power in the Judge could be spelt out by necessary implication from the various provisions enacted in Rule 142 Sub-rules (2) and (3) Rule 147 Rule 450 and Form No. 5. These were the rival contentions urged on behalf of the parties and we shall now proceed to examine them.

5. We will first consider the question as to which were the Rules in Order 37 which were applicable to the City Civil Court: whether they were the Rules as originally enacted or whether they were the Rules as amended by the Bombay High Court? Now it was common ground that the Rules as originally enacted in Order 37 were amended by the Bombay High Court on two occasions as pointed out by us above and these amendments were effected by the Bombay High Court in exercise of its powers under Section 122. There is therefore no doubt that so far as the State of Bombay was concerned Rules which were applicable at the date of the bifurcation were the amended Rules and not the Rules as originally enacted. The argument on behalf of the first defendant however was that the amended Rules were not in force in the Gujarat territories at the time of the bifurcation and Section 87 of the Bombay Reorganization Act 1960 did not therefore continue the amended Rules so as to render them applicable in the State of Gujarat after the date of bifurcation. What was urged was that Order 37 had not been made applicable to any Court within the Gujarat territories by virtue of a notification issued by the State Government under Clause (b) of Rule 1 and Order 37 could not therefore be said to be in force in those territories. This argument in our opinion suffers from a basic fallacy in that it assumes that it is only when Order 37 is made applicable to any Court by the State Government issuing a notification specially empowering that particular Court in that behalf that Order 37 would come into force within the territories subject to the jurisdiction of that particular Court. This assumption is wholly unfounded. If we turn to Section 1 Sub-sections (2) and (3) it is apparent that the Code came into force on 1st January 1909 and it extended to the whole of India including the State of Bombay excepting only certain territories set out in Section 1 Sub-section (3). The Code and when we say the Code it must mean the whole of the Code including Order 37 was thus in force in the whole of India including the State of Bombay barring the excepted territories. Order 37 was therefore in force in the Gujarat territories at the date when bifurcation took place that is on the appointed day under the Bombay Reorganization Act 1960 Of course the procedure prescribed in Order 37 could not be availed of in any Court within the Gujarat territories because no Court was empowered in that behalf by the State Government but that would not militate against the proposition that Order 37 was in force in those territories. Unless Order 37 was in force in those territories it is difficult to see how the State Government could possibly have the authority to specially empower in this behalf any Court in those territories. It was not disputed that prior to the appointed day the State of Bombay could have specially empowered any Court within the Gujarat territories for the purpose of Order 37 and in that event the summary procedure prescribed by the amended Rules in Order 37 could have been availed of in such Court. But then we may ask the question: what was the source of authority of the State of Bombay to specially empower such Court for the purpose of Order 37? The State of Bombay could have no such authority unless a law in force conferred such authority on the State of Bombay and that law was Order 37 Rule 1. It must therefore follow as a necessary corollary that Order 37 Rule 1 was in force in the Gujarat territories and if Rule 1 was in force the other Rules in Order 37 were equally in force for no distinction can be drawn between Rule 1 and the other Rules so far as this argument is concerned. Order 31 was in force in the Gujarat territories by reason of the express provision contained in Section 1 Sub-sections (2) and (3) and the procedure prescribed by that Order could be availed of in any Court within the Gujarat territories provided that Court was specially empowered in that behalf by the State Government. It may be that if there was no Court specially empowered in this behalf by the State Government the procedure prescribed by Order 37 could not be followed but in such a case the procedure would not be possible to be followed not because Order 37 was not in force in the territories subject to the jurisdiction of that Court but because though Order 37 was in force within those territories there being no Court specially empowered in this behalf by the State Government the procedure could not be availed of. The position is not unlike that which might arise if a statute provides a special forum and a special procedure for a particular type of proceeding and brings the statute into force but the forum is not constituted. In such a case until the forum is constituted no proceedings can be taken in the manner prescribed by the statute but it certainly cannot be said that the statute is not in force. We are therefore of the view that the amended Rules of Order 37 were in force in the Gujarat territories on the appointed day and that by reason of Section 87 they continued to be in force in those territories notwithstanding the bifurcation of the State of Bombay. Just as the State of Bombay could prior to the appointed day specially empower in this behalf any Court within the Gujarat territories so also can the State of Gujarat specially empower in this be half any Court within the Gujarat territories and when that is done the procedure prescribed by the amended Rules of Order 37 would be applicable in relation to summary suits in that Court. That was done in the present case by the State of Gujarat in so far as the City Civil Court was concerned and the amended Rules of Order 37 therefore became applicable to the City Civil Court with effect from 4th November 1961.

6. But as we shall presently show the amended Rules of Order 37 in their application to the City Civil Court must be read subject to the Ahmedabad City Civil Court Rules and particularly Rules 142 to 148. The Ahmedabad City Civil Court Rules were made by the Gujarat High Court in exercise of its powers under Section 122 and under that section the Gujarat High Court could make rules so as to annul alter or add to all or any of the Rules in Order 37. If therefore any provision in the Ahmedabad City Civil Court Rules conflicts with any Rules contained in Order 37 then to the extent of the conflict the provision in the Ahmedabad City Civil Court Rules would prevail and the Rules in Order 37 would stand abrogated to that extent. But if there is no conflict between a particular provision contained in the Rules in Order 37 and the Ahmedabad City Civil Court Rules the particular provision in the Rules in Order 37 must be held to continue in force and be applicable notwithstanding the promulgation of the Ahmedabad City Civil Court Rules. Of course the conflict which would have the result of abrogating any provision in Order 37 may be express or it may even arise by necessary implication. But unless there is a conflict no provision in the Rules in Order 37 can be regarded as abrogated. The Ahmedabad City Civil Court Rules and the Rules in Order 37 must be read together so as to harmonize with each other and it is only where it is not possible to harmonize them that we would have to come to the conclusion that there being a conflict the provision in the Rules in Order 37 must give way to the provision in the Ahmedabad City Civil Court Rules.

7. If we approach the question before us bearing this principle in mind there is no difficulty at all in arriving at a correct solution of the question. Let us read Rules 142 to 148 of the Ahmedabad City Civil Court Rules and the amended Rules of Order 37 together and see how far the former supersede the latter. Turning to Rule 142 Sub-rule (1) we find that it is for all practical purposes in the same terms as Order 37 Rule 2 Sub-rule (1) barring the fact that Order 37 Rule 2 Sub-rule (1) provides that a suit by a landlord against a tenant for possession or mesne profits may be filed as a summary suit whereas no such provision is made in Rule 142 Sub-rule (1). It was contended on behalf of the first defendant that Rule 142 Sub-rule (1) abrogates Order 37 Rule 2 Sub-rule (1) and that a suit by a landlord against a tenant for possession or mesne profits even where it is not governed by the Rent Act cannot therefore be filed in the City Civil Court as a summary suit. It is not necessary for us for the purpose of these Revision Applications to decide this question. It may be possible to take the view that Rule 142 Sub-rule (1) merely reiterates a part of the provision enacted in Order 37 Rule 2 Sub-rule (1) and that its omission to refer to the remaining part namely that relating to a suit by a landlord against a tenant for possession or mesne profits does not create any conflict between the two provisions and that both the provisions can therefore stand together one merely overlapping the other to the extent of a part or it may also be possible to take the view that the maxim expression unius est exclusio alterius applies and that Order 37 Rule 2 Sub-rule (1) must therefore by necessary implication be held to have been abrogated. We need not enter into that controversy. Rule 142 Sub-rule (2) corresponds to Order 37 Rule 3 Sub-rule (1) and does nothing more than reiterate the provision enacted in the latter sub-rule. Rule 142 Sub-rule (3) is practically identical with Order 37 Rule 2 Sub-rule (2) barring only a little difference in phraseology which is not at all material. Then we come to Rule 143 Sub-rule (1). The first sentence of that sub-rule makes substantially the same provision as Order 37 Rule 3 Sub-rule (2). The second sentence which constitutes the last part of that sub-rule corresponds to the first part of Order 37 Rule 3 Sub-rule (4) while the last part of Order 37 Rule 3 Sub-rule (4) finds its counterpart in Rule 147. There are no Rules in Order 37 corresponding to Rule 143 Sub-rules (2)(3) and (4) and Rules 144 145 146 and 148. So also there are no Rules in the Ahmedabad City Civil Court Rules corresponding to Rules 4 5 6 and 7 of Order 37. It would therefore be seen that barring Rules 142 Sub-rules (1)(2) and (3) and Rule 143 Sub-rule (1) and Rule 147 which correspond to Order 37 Rule 2 Sub-rule (1) Rule 3 Sub-rule (1) Rule 2 Sub-rule (2) Rule 3 Subrule (2) and Rule 3 Sub-rule (4) there are no other Rules in the Ahmedabad City Civil Court Rules which correspond to any Rules in Order 37 nor are there any other Rules in Order 37 which correspond to any Rules in the Ahmedabad City Civil Court Rules. Rule 143 Sub-rules (2)(3) and (4) and Rules 144 145 146 and 148 can therefore stand side by side with the Rules in Order 37 and equally Order 37 Rule 3 Sub-rule (3) and Rules 4 to 7 can stand side by side with the Ahmedabad City Civil Court Rules and both sets of provisions can simultaneously apply without creating any conflict. It is not possible to believe that the Gujarat High Court in framing the Ahmedabad City Civil Court Rules could have intended to abrogate Order 37 Rule 3 Sub-rule (3) and Rules 4 to 7. If that was the intention there is no doubt that it would have been expressed in clear and explicit terms and not left to be gathered by resort to the argument that since a set of Rules is made in regard to summary suits that must have the effect of excluding the applicability of the whole of Order 37 to summary suits. As a matter of fact when we turn to the Rules contained in other Chapters of the Ahmedabad City Civil Court Rules we find that it is not infrequent that some of the Rules set out in the first Schedule of the Code are repeated in the Ahmedabad City Civil Court Rules and sometimes a set of Rules is made in regard to a particular topic dealt with by one or the other Order in the Code. This could not have been done with the intention of abrogating the provisions of the Code in regard to that particular topic. The Rules made in the v. Ahmedabad City Civil Court Rules are supplementary to the Rules contained in the First Schedule except in the event of conflict in which event the Rules in the Ahmedabad City Civil Court Rules must prevail as against the Rules in the first Schedule. We are therefore of the view that Order 37 Rule 3 Sub-rule (3) applies in relation to a summary suit instituted in the City Civil Court and that under that provision leave to defend can be granted by the Judge unconditionally or upon such terms as to the Judge may appear just.

8. It was however contended on behalf of the first defendant that Rule 142 Sub-rule (3) provided that the defendant shall not defend the suit unless he enters an appearance and obtains leave of the Judge as hereinafter provided so to defend and that the provision for obtaining leave to defend must therefore be found in the Ahmedabad City Civil Court Rules and not in Order 37 Rule 3 Sub-rule (3) and that Order 37 Rule 3 Sub-rule (3) cannot be availed of by the plaintiffs. This argument overlooks the fact that Rules 142 to 148 are Rules made in the exercise of the powers of the Gujarat High Court under Section 122 and these Rules have the effect of annulling altering or adding to all or any of the Rules in Order 37. The Gujarat High Court knew that there were various Rules in Order 37 relating to summary procedure which would have applied to the City Civil Court but the Gujarat High Court mad Rules 142 to 148 with a view to amending those Rules by annulling altering or adding to those Rules. Rules 142 to 148 were therefore really by was of amendment of the Rules in Order 37 in so far as the City Civil Court was concerned and they must therefore be read not as an independent set of Rules but as amending and consequently forming part of the Rules contained in Order 37. If that is done then the words as hereinafter provided so to defend can bring in reference to the provisions of Order 37 Rule 3 Sub-rule (3). This view which we are inclined to take receives considerable support from the following three considerations:

(1) Rule 142 Sub-rule (1) clearly states that a suit instituted as a summary suit under that provision shall contain an averment that the plaintiff is suing under the summary procedure under Order 37 of the Code;

(2) Rule 143 in terms describes a suit instituted under Rule 142 5 Rule (1) as a suit filed under Order 37 of the Code; and

(3) Form No. 5 which is the form prescribed by Rule 142 Sub-rule (2) for a writ of summons in a suit instituted under Rule 142 Sub-rule (1) clearly mentions that the suit is a suit instituted under Order 37 of the Code and that the summons is one under Order 37 Rule 2 of the Code.

These considerations clearly show that a suit instituted in accordance with the summary procedure prescribed by Rules 142 to 148 is a suit under Order 37 of the Code and that the writ of summons issued in such a suit is a writ of summons under Order 37 Rule 2. The conclusion which must therefore follow inevitably is that Rules 142 to 148 were superimposed on the Rules contained in Order 37 by way of an amendment and that they became part of Order 37 as soon as they were made and that Order 37 Rule 3 Sub-rule (3) must therefore apply and it would be clearly covered by the words as hereinafter provided so to defend.

9. We may also point out that in any event having regard to the terms in which Form No. 5 is couched it is clear that under the procedure prescribed by the Ahmedabad City Civil Court Rules the defendant may apply for leave to defend at the hearing of the Summons for Judgment and that leave to defend may be given to him if he satisfies the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that he should be allowed to defend the suit and if this be so it must follow by necessary implication that the Judge has the power to grant leave to defend. Since Form No. 5 comes after Rule 142 Sub-rule (3) and so also does Rule 450 which prescribes that Form No. 5 shall be used for the purpose set out in Rule 142 Subrule (2) it is possible to take the view that the words as hereinafter provided so to defend have reference to the provision in that behalf which is to be found in the Form of the Writ of Summons given in Form No. 5. That Form is a statutory form and is part of the Rules and it clearly says that leave to defend may be obtained at the hearing of the Summons for Judgment on the defendant satisfying the Court as provided therein. Now when the Judge has power to give leave to defend it is implicit that he may give such leave unconditionally or he may impose such terms and conditions as he thinks proper while granting such leave. The fact that such power to impose conditions while granting leave to defend is implicit is recognised by Rule 147 which provides that if the defendant does not complete his security (if any) or carry out such other directions as the Judge may have given within the time limited in the Order the plaintiff shall be at liberty to apply to put the, suit for hearing forthwith before the Sitting Judge in Chambers as if no such order had been made.

We are therefore of the view that it is competent to a Judge of the City Civil Court to make a conditional order while granting leave to defend under the provisions of Rule 142 Sub-rule (3) of the Ahmedabad City Civil Court Rules. There will be no order as to costs.


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