AMRATLAL RAVJIBHAI Vs. PARI PARSHOTTAMDAS HARIVALLABHDAS

JUDGEMENT

(1.) This appeal raises an interesting question of law relating to the interpretation of certain rules relating to summary suits in the Ahmedabad City Civil Court Rules 1961 made by the High Court in exercise of its powers under Article 227 of the Constitution and section 122 of the Code of Civil Procedure. The facts giving rise to the appeal may be briefly stated as follows. On 24th November 1962the appellants filed Summary Suit No. 1317 of 1962 in the City Civil Court Ahmedabad claiming to recover from the respondents a sum of Rs. 1 2 600 with interest and costs. The suit was filed as a summary suit under the procedure prescribed for summary suits by the Ahmedabad City Civil Court Rules. Two advocates were engaged by the appellants right from the date of the institution of the suit. The summons was served on the respondents on the same day on which the suit was instituted and on 3rd December 1962 the respondents filed their appearance and gave notice of the appearance to the appellants advocates. Within ten days of the filing of the appearance the appellants took out a summons for judgment on 8th December 1962. By the summons for judgment the appellants prayed for a decree for Rs. 1 2 600 with interest and costs. The summons for judgment came up for hearing before the City Civil Court on 20th December 1962 when an application was made on behalf of the respondents to adjourn the hearing of the summons for judgment. The hearing of the summons for judgment was accordingly adjourned for ten days. The summons for judgment thereafter came up for hearing on 10th January 1963. On that day no affidavit in reply was filed on behalf of the respondents nor was any application made on behalf of the respondents for leave to defend the suit. The only application made on behalf of the respondents was that time should be granted to the respondents for payment of the decretal amount. The learned Judge hearing the summons for judgment thereupon passed a decree on the same day i. e 10 January 1963 for Rs. 1 2 600 with interest on Rs. 1 0 0 at the rate of four per cent per annum from the date of suit till payment and costs of the suit and directed that the decree shall not be executable upto 10th May 1963. The learned Judge allowed refund of 2/3rds of the court-fees as provided by the relevant rules and determined the pleaders fees as 1/4th of the usual fees on the basis of a single advocate. The appellants were aggrieved by two pro visions of the decree passed by the learned Judge the first provision being that the decree shall not be executable upto 10th May 1963 and the other provision being that the pleaders fees shall be 1/4th of the usual fees on the basis of a single advocate. The appellants there upon preferred the present appeal in this Court challenging the legality of the said two provisions made in the decree passed by the learned Judge.

(2.) Mr. B. J. Bhatt learned advocate appearing on behalf of the appellants contended that under the Rules relating to summary suits in the Ahmedabad City Civil Court Rules the respondents could not be heard at all by the learned Judge in answer to the summary suit unless the respondents asked for and obtained leave to defend the suit and since in the present case no leave to defend the suit was asked for and obtained by the respondents the respondents were not entitled to apply to the learned Judge for time in regard to the payment of the decretal amount nor was the learned Judge entitled to grant time to the respondents on such application. The contention of Mr. B. J. Bhatt was that since leave to defend the suit was not asked for and obtained by the respondents a decree as prayed for in the summons for judgment was bound to go against the respondents and there was no power in the learned Judge to grant time to the respondents to make payment of the decretal amount and that the learned Judge was therefore in error in directing that the decree shall not be executable upto 10th May 1963. Mr. P.V.Nanavatilearned advocate appearing on behalf of the respondents on the other hand contended that the only result of the respondents not having asked for and obtained leave to defend the suit was that the respondents were precluded from defending the suit but the right of the respondents to apply to the learned Judge at the time of passing the decree to grant time for payment of the decretal amount under Order XX Rule 11 sub-rule (1) of the Code of Civil Procedure was not taken away by anything contained in the rules relating to summary suits in the Ahmedabad City Civil Court Rules nor was the power of the Court under Order XX Rule 11 subrule (1) affected in any manner whatsoever by any provision contained in those Rules. These rival contentions raise an important question of law relating to the procedure in summary suits and we find that there is no direct authority either of the High Court of Bombay or of this Court on that question.

(3.) Before we examine the validity of these rival views which were canvassed before us it will be convenient to set out the relevant rules in the Ahmedabad City Civil Court Rules bearing upon the present controversy. The relevant rules are Rules 142 143 and 144 which are in the following terms:--