SAM M HAEEMS Vs. SAMSON J BENJAMIN

JUDGEMENT

(1.) Respondents 1 and 2 to this petition filed a suit being Summary Suit No. 1462 of 1962 on December 12 1962 for the recovery of Rs. 350 said to have been advanced to the petitioner and respon- dent No. 3. According to respondents 1 and 2 these moneys were advanced from time to time on the request of the petitioner and respondent No. 3 and the aforesaid advances were made by cheques drafts and sometimes in cash. Thereafter respondents 1 and 2 took out a summons for judg- ment on January 31 1963 In answer to that summons the petitioner and the third respondent filed their respective affidavits in reply. The summons for judgment came up for hearing on February 28 1963 when the learned Judge of the City Civil Court Ahmedabad passed an order granting conditional leave to defend provided that each of the two defend- ants namely the petitioner and the third respondent furnished to the satisfaction of that Court adequate security in the sum of Rs. 32 0 The petitioner and the third respondent being aggrieved by that order filed in this Court two revision applications being Revision Applications Nos. 245 and 295 of 1963. Those two revision applications were heard by Bhagwati J. who for the reasons set out in his order dated June 18 1963 set aside the aforesaid order and remanded the summons to the trial Court. On August 16 1963 that Court heard the summons again when the learned Judge who heard that summons granted unconditional leave to defend to the second defendant i. e. the third respondent. He also granted to the petitioner unconditional leave to defend to the extent of Rs. 17 0 out of the aforesaid claim of Rs. 32 0 But as regards the balance of Rs. 15 0 and interest on the amount of Rs. 32 0 the learned Judge granted conditional leave stating that the petitioner would be at liberty to defend the suit provided he furnished security to the extent of Rs. 15 0 within the time prescribed in his order. The petitioner thereupon filed the present Civil Revision Application. Respondents 1 and 2 also filed Civil Revision Application No. 887 of 1963 contending therein that the learned Judge was not right in ordering security to the extent only of Rs. 15 0 and that there was an irregularity in the exercise of his jurisdiction in not directing the petitioner as also the third respondent to furnish security to the extent of the entire of amount Rs. 32 0 and costs. Mr. Shah who appears for respondents 1 and 2 in this petition and for the petitioners in Civil Revision Application No. 887 of 1963 stated that he was not pressing that petition and that the same may be dismissed for want of prosecution. The result therefore is that Civil Revision Application No. 887 of 1963 is dismissed for want of prosecution and in view of Mr. Vyas not press- ing for the costs therein there will be no order as to costs so far as that petition is concerned.

(2.) Reverting now to the present petition Mr. Vyas for the petitioner raised two contentions. The first contention relates to the validity of Order 37 rules 2 and 3 of the Civil Procedure Code as amended by the Bombay High Court in 1936 and 1940 and rule 142(3) of the Ahmedabad City Civil Court Rules 1961 framed by this Court under secs. 122 and 128 of the Civil Procedure Code Article 227 of the Constitution and all other powers enabling this High Court to frame the aforesaid rules. The second contention is on merits and that contention is that petitioner and the third respondent had in their respective affidavits raised a triable issue and that therefore the learned Judge was bound to give uncondi- tional leave to defend to both of them. That triable issue was that at the material time respondents 1 and 2 were carrying on business as money lenders within the meaning of sec. 2(10) of the Bombay Money Lenders Act XXXI of 1947 and that they not having obtained the requisite licence under that Act were not entitled to file a summary suit under Order 37 of the Code.

(3.) Order 37 rule 1 provides that it shall apply only to the High Courts of Judicature at Fort William Madras and Bombay and any District Court or other Court specially empowered in that behalf by the State Government. Rule 2 provides that all suits upon bills of exchange hundis or promissory notes may in case the plaintiff desires to proceed thereunder be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Appendix B or in such other form as may from time to time be prescribed. Sub-rule (2) of rule 2 provides that in any case in which the plaint and summons are in such forms respectively the defendant shall not appear or defend the suit unless he obtains from a Judge as there in after provided so to appear and defend; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree etc. Rules 1 and 2 were as aforesaid amended by the High Court of Bombay and as amended rule 2 of Order 37 provides that All suits upon bills of exchange hundis or promissory notes and all suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest arising on contract express or implied or on an enact- ment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty or on a guarantee where the claim against the principal is in respect of a debt or a liquidated demand only or in suits in which the landlord seeks to recover possession of immovable property with or without a claim for rent or mesne profits against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant may in case the plaintiff desires to proceed here under be instituted by presenting a plaint in the form prescribed but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed. Sub- rule (2) of rule 2 provides that in any case in which the plaint and sum- mons are in such forms respectively the defendant shall not defend the suit unless he enters an appearance and obtains leave from a Judge so to defend; and in default of his entering an appearance and of his obtaining such leave to defend the allegations in the plaint shall be deemed to be admitted all the plaintiff shall be entitled to a decree for possession and/or as the case may be for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified (if any) to the date of the decree and such sum for costs as may be prescribed unless the plaintiff claims more than such fixed sum in which case the costs shall be ascertained in the ordinary way and such decree may be executed forthwith. Rule 3 provides that the plaintiff shall together with the writ of summons under rule 2 serve on the different a copy of the plaint and exhibits thereto and the defendant may at any time within ten days of such service enter an appearance. It also provides that on the day of entering such appearance notice of appearance shall be given to the plantiffs attorney (or if the plaintiff sues in person to the plaintiff himself) either by notice delivered at or sent by prepaid letter directed to the address of the plaintiffs attorney or the plaintiff as the case may be. Sub-rule (2) of rule 3 then provides that if the defendant enters an appearance the plaintiff shall thereafter serve on the defendant a summons for judgment returnable not less than two clear days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. Sub-rule (3) of rule 3 provides that the defendant may at any time within ten days from the service of such summons for judgment by affidavit or otherwise disclosing such facts as maybe deemed sufficient to entitle him to defend apply on such summons for leave to defend the suit. Leave to defend may be granted to him unconditionally or upon such terms as to the Judge appear just. Sub-rule (4) of rule 3 provides that at the hearing of summons for judgment if the defendant has not applied for leave to defend or if such application has been made and is refused the plaintiff shall be entitled to judgment forthwith or if the defendant be permitted to defend as to the whole or any part of the claim the Judge shall direct that on failure to complete the security (if any) or to carry out such other directions as the Judge may have given within the time limited in the order the plaintiff shall be entitled to judgment forthwith. This was the state of the law when the then State of Bombay was bifurcated by the Bombay Re-organisation Act 1960