HARIKRISHNA PUNAROOR Vs. SEA VIEW TOURIST HOME

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 25-10-1979 of the District Judge, Dakshina Kannada, Mangalore, in RA No. 18 of 1979 on his file.

(2.) The facts involved may be stated briefly. The respondent herein filed a suit against the appellant for recovery of a sum of Rs. 10,175 04 p. in the Court of the Principal Civil Judge, Mangalore (D.K.) in OS No. 37 of 1979. The suit was filed invoking the summary procedure as laid down under Or. XXXVII of the Code of Civil Procedure (Code). The plaintiff, which is a firm claims that in respect of a premises situated in the City of Mangalore the defendant is its monthly tenant, being liable to pay a monthly rent of Rs. 2,500, having taken the said premises on lease under a registered lease dead dated 23-11-76. The plaintiff's allegation in the suit was that the defendant had committed default in the payment of rents due for the months of October to December, 1978, and and January 1979 and therefore, he was liable to pay the said sum of Rs. 10,000 plus interest at 12% from the due dates, in all amounting to Rs. 10,175-04 ps.

(3.) The defendant, who admittedly had not entered appearance and sought permission of the Court to defend the claim within the time stipulated in the relevant sub rules of R. 3 of Or. XXXVII, filed an application (IA I) in the Court below stating that Or. XXXVII was not attracted to the facts of the case ; that that special procedure could not have been invoked by the plaintiff; and that, in the circumstances, he was entitled to contest the suit as of right and without the constraints of Or. XXXVII and the relevant rules. The Civil Judge held that the suit could be proceeded with under Or. XXXVII and further held that IA I, by which the defendant had sought for permission to enter appearance and defend the suit, was not maintainable and dismissed the said IA, and granted a decree in favour of the plaintiff as sought for. The learned District Judge has up- held the judgment and decree of the Civil Judge.