HARI CHAND MAHAJAN Vs. ATTAR CHAND AND COMPANY

JUDGEMENT

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

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

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