Law Web: Whether delay on part of defendant to apply for leave to defend in summary suit is fatal?

The object of summary procedure prescribed under

Order 37 of the Code of Civil Procedure is primarily to

ensure that such suits are disposed of expeditiously by

following summary procedure as against the normal

procedure in Regular Civil Suit, which may be time

consuming. Therefore, certain periods of limitation are

introduced with the object to prevent unreasonable

obstruction by the defendant who has no defence

whatsoever to such a suit mainly based on Negotiable

Instruments. But, when defendant enter into appearance,

he can satisfy the Court about prima facie goodness of his

defence and he is certainly entitled to apply for conditional

or unconditional leave to defend, which may be granted

upon just terms and conditions or even unconditionally as

per judicial discretion available with the Court looking into

facts and circumstances of a particular case. Section 115 of

the Code of Civil Procedure allow this Court to exercise

revisional power over subordinate Courts in limited cases

wherein order passed is beyond jurisdiction as vested in the

subordinate Court by law or when subordinate Court

appears to have failed to exercise jurisdiction so vested or

acted illegally or with material irregularity. Looking into

principles u/s.115 of the Code of Civil Procedure, the

impugned order granting unconditional leave to defend to

defendants after the delay was condoned appears well

within judicial discretion of the Court below. Considering

the facts and circumstances of the case that the suit was

instituted in the Court of Joint Civil Judge (Sr.Dn.), Nagpur

on 1.4.2011 and the date for appearance of defendants

was fixed on 3.11.2011 the defendants appeared on

28.11.2011 and applied for condonation of delay in

appearance, to which reply was filed by the plaintiff on

5.12.2011. By order dt.6.8.2012 delay was condoned

subject to payment of costs which was deposited. Thus, in

these circumstances, considering the time granted in the

Court below and the order passed by the Court below to

grant unconditional leave, no serious prejudice would result

to the plaintiff if suit is heard expeditiously by 5th Joint

Civil Judge (Sr.Dn.), Nagpur. The Court below shall be

mindful of the fact that the suit was instituted under Order

37 of the Code of Civil Procedure and may proceed further

to hear the suit according to law considering the defence

raised by the defendants expeditiously and as early as

possible. In the circumstances, no interference is warranted

in the impugned order.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CIVIL REVISION APPLICATION NO.118 OF 2014

Hemant s/o. Rangrao Nagpure,

// VERSUS //

M/s.Rawassa Construction,

CORAM : A.P.BHANGALE, J.

DATE : 22.6.2015.

Citation: 2016(4) ALLMR81

2. The appellants herein (original plaintiffs) instituted

Summary Civil Suit No.108 of 2011 in the Court of 5th

Joint Civil Judge (S.D.), Nagpur. Power of the said Court

to entertain Summary Suits under Order 37 of the Code of

Civil Procedure is not in dispute. The revision applicants

have to challenge legality, propriety and correctness of the

order dt.25.9.2014 below Exh.29 in the said Summary Civil

Suit No.108 of 2011. The applicants have grievance that

the provisions of Order 37 of the Code of Civil Procedure

were not properly followed by the Court below in a suit for

recovery of substantive sum of money. After the applicants

filed Summary Civil Suit, the respondents delayed in filing

their appearance and sought condonation of delay in filing

appearance. The Court below by order dt.6.8.2012

condoned the delay. While applications for issuance of

summons for Judgment was also filed on 1.10.2012 and the

respondents were served with that summons for Judgment

on 10.10.2012. They filed an application for leave to

defend on 24.10.2012. That application for leave to defend

was replied by the applicants on 22.11.2012. In these facts

and circumstances, the Court below condoned the delay as

well as by the impugned order granted leave to defend the

suit. This impugned order is challenged on the ground that

it is based on conjectures and surmises and without

recourse to the material on record alleging that there is

material irregularity and that the error is apparent on the

face of the record. Thus, revisional jurisdiction of this Court

is invoked for to interfere with the impugned order.

3. According to the learned Counsel for the revision

applicants, the settled principles in the ruling by three

Judge Bench of Hon'ble Apex Court in the case of

M/s.Mechalee Engineers and Manufacturers vs. M/s.

Basic Equipment Corporation reported in AIR 1977 SC

577 : (1976) 4 SCC 687 ought to have been followed. The

said ruling would indicate that the High Court cannot

interfere with the exercise of discretion by the subordinate

Court in granting unconditional leave under Order 37, Rule

3 of the Code of Civil Procedure to defend upon grounds

which are prima facie reasonable. In para nos.8 and 9 of

the said ruling principles were summarised as reproduced

from the earlier ruling, which are mentioned as below :

“8.In Smt.Kiranmoyee Dassi vs. Dr.J.Chatterjee, AIR

1949 Cal 479, after a comprehensive review of

authorities on the subject, stated the principles

applicable to cases covered by Order 17 C.P.C. In the

form of the following propositions (at p. 253) :

a) If the defendant satisfies the court that he

has a good defence to the claim on its merits the

plaintiff is not entitled to leave to sign judgment and

the defendant is entitled to unconditional leave to

defend.

b) If the defendant raises a triable issue

indicating that he has a fair or bona fide or

reasonable defence although not a positively good

defence the plaintiff is not entitled to sign judgment

and the defendant is entitled to unconditional leave

to defend.

c) If the defendant discloses such facts as may

be deemed sufficient to entitle him to defend, that is

to say, although the affidavit does not positively and

immediately make it clear that he has a defence, yet

shows such a state of facts as leads to the inference

that at the trial of the action he may be able to

establish a defence to the plaintiff's claim the plaintiff

is not entitled to Judgment and the defendant is

entitled to leave to defend but in such a case the

court may in its discretion impose conditions as to

the time or mode or trial but not as to payment into

court or furnishing security.

d) If the defendant has no defence or the

defence set up is illusory or sham or practically

moonshine then ordinarily the plaintiff is entitled to

leave to sign judgment and the defendant is not

entitled to leave to defend.

e) If the defendant has no defence or the

defence is illusory or sham or practically moonshine

then although ordinarily the plaintiff is entitled to

leave to sign judgment, the court may protect the

plaintiff by only allowing the defence to proceed if

the amount claimed is paid into court or otherwise

secured and give leave to the defendant on such

condition, and thereby show mercy to the defendant

by enabling him to try to prove a defence.”

“9. The case before us certainly does not fall

within the class (e) set out above. It is only in that

class of case that an imposition of the condition to

deposit an amount in court before proceeding further

is justifiable. ”

4. Thus, the defendant in a Summary suit may satisfy

the Court that he has good or reasonable defence to the

claim on its merits. In other words, the plaintiff is not

entitled to Judgment when defendant has good or

reasonable defence. It is only in those cases where

defendant has no defence or defence tried to be set up is

illusory or sham or practically moonshine then the plaintiff

is ordinarily entitled to Judgment in Summary suit. While

granting leave to defend, the Court may certainly protect

the plaintiff by insisting upon the amount claimed to be

deposited in the Court before proceeding further with the

suit. The same principle appears to have been followed in

the case of Neebha Kapoor .vs. Jayantilal Khandwala and

Others reported in 2008 (5) Mh.L.J. 87 as reflected in para

11 thereof. My attention is also invited to the Bombay High

Court (Original side) Rules, 1980 in relation to Summary

suits. If the plaintiff is lethargic in not taking summons

within six months of filing of the plaint, delay by itself may

not entitle the defendant to unconditional leave to defend.

The rules indicate need to exercise judicial discretion

available in such cases in the matter of granting conditional

or unconditional leave to defend the suit. The object of

prescribing different periods in Order 37 of the Code of

Civil Procedure is to serve summons in prescribed format,

to enter appearance in such suit and obtain leave to defend

the suit also indicate that if there is sufficient cause to

excuse the delay in the matter of entering appearance or

applying for leave to defend, judicial discretion is

exercisable to condone delay in the matter of grant or

refusal of leave to defend the suit. The crux of the matter is

that if defendant is able to satisfy the Court about goodness

of his defence, the Court may condone delay and grant

leave to defend that may be conditional or unconditional

depending upon the facts and circumstances of the case. In

other words, Order 37 of the Code of Civil Procedure

provides for summary procedure and unlike the ordinary

suit, the defendant is not entitled to defend the suit as of

right but must apply for leave to defend the suit.

5. The provisions of Order 37 as well as procedure

which is followed in such cases is discussed by the Division

Bench of this Court in Bakay Bihari G. Agrawal and

Others .vs. M/s. Bhagwanji Meghji and Others reported

in 2001 (1) Mh.L.J. 345. The questions which was posed

before the Court were as follows:

Question No.1 : What is the legal consequence of a

Summons for Judgment not being taken out by a Plaintiff

within the period of 6 months of the plaint being filed ?

This Court answered thus :

The suit is liable to be placed on the board of the

Chamber Judge for dismissal. It is open for the plaintiff to

contend before the Chamber Judge that for good reasons

the suit ought not to be dismissed. It is left to the judicial

discretion of the Chamber Judge to dismiss the suit or

direct it to proceed on such terms as he deems fit.

Question No.2 : Upon such failure of the Plaintiff, is the

Defendant, as a matter of course, entitled to unconditional

leave to defend the suit, irrespective of the merits of the

defence ?

This Court answered thus :

A delay in taking out summons for Judgment beyond

the period of six months prescribed by rule 227 does not

automatically entitle the defendant to unconditional leave

to defend the suit; but it is a relevant factor to be

considered in conjunction with the nature of the defence

while granting conditional or unconditional leave to defend

the suit or refusing the application for leave to defend.

6. Considering the answers to the questions which were

raised before the Division Bench of this Court, the matters

regarding condonation of delay or grant or refusal of leave

to defend conditionally or otherwise are left to the area of

judicial discretion. It has a wide scope as the consequence

need not be fatal if litigant commits lapses in not

approaching the Court within the time prescribed by the

rules. Thus, the lapses may occur on the part of the litigant

or Advocate representing him. But, the effort of the Court

is to pass an order in the larger interest of justice so that

the litigant ought not to be penalised on account of his

bona fide mistake. This is on the principle “ to err is a

human”. Reference is made to the ruling in the matter of

condonation of delay for sufficient cause or on account of

mistakes committed by litigants or by lawyers representing

litigants.

7. The learned Counsel who opposed revision pointed

out rulings in the case of State of M.P. and another .vs.

Pradeep Kumar and another reported in (2000) 7 SCC

372 and in the case of Esha Bhattacharjee vs. Managing

Committee of Raghunathpur Nafar Academy and Others

reported in (2013) 12 SCC 649.

8. The object of summary procedure prescribed under