MAHESHKUMAR TRIBHOVANDAS PATEL Vs. RAMESHKUMAR RATILAL PATEL

JUDGEMENT

(1.) The sole question which has been raised before us in this appeal under Section 96 of the Civil Procedure Code, 1908 by the appellants-original defendants is that the impugned judgement of the Civil Court (S.D.), Bhavnagar, dated 5.5.2000 in summary Suit No. 1/2000 whereby a decree came to be passed for an amount of Rs. 1,48,600/- with interest, is erroneous, unjust and without giving sufficient opportunity.

(2.) The respondent is the original plaintiff who instituted the aforesaid summary case under Order 37 Rule 2 of the C.P.C. and the appellants-original defendants were served on 20.1.2000 with the summons of summary Suit based on promissory note of a sum of Rs. 1 lakh dated 8.1.1997. The appellants failed to move the court within a period of 10 days from that date. Not only that, they remained absent on the next date like that on 31.1.2000. They appeared late after three days.

(3.) The original defendants thereafter moved an application Exh. 8 showing the reasons for late appearance which also came to be rejected by the court on 24.3.2000. Unfortunately, copy of the said application is also not produced in this appeals for the reasons not known to us. The defendants again requested the trial court to wait for some time as they desired to file appeal and obtain stay against the order passed below Exh. 8. Such application was moved in writing at Exh. 50. It appears that by giving application the court was requested to stay the order below Exh. 8 upto 3.5.2000. That is the reason the Civil Court in the impugned judgement, has mentioned that instead of giving time from 24.3.2000 to 3.5.2000, the defendants have not obtained the stay from the higher court and have not produced the same. Therefore, the Trial Court has observed that the defendants have failed to observe the mandatory provision of Order 37 Rule 3 holding the appearance defective and not legal, decree came to be passed in terms of Order 37 rule 2(3) of the C.P.C. against the present appellants-original defendants.