SAM M HAEEMS Vs. SAMSON J BENJAMIN

JUDGEMENT

(1.) The question which arises in these Revision Applications is whether it is competent to a Judge of the City Civil Court to pass a conditional order when granting leave to defend under the provisions of Rule 142 sub-rule (3) of the Ahmedabad City Civil Court Rules. The plaintiffs filed a suit being Summary Suit No. 1462 of 1962 against the defendants in the City Civil Court Ahmedabad to recover a sum of Rs. 32 0 alleged to be due by the defendants to the plaintiffs under certain promissory notes which the plaintiffs claimed had been executed by the defendants in favour of the plaintiffs. The suit was filed as a Summary Suit and on the appearance being filed by the defendants a Summons for Judgment was taken out by the plaintiffs. On the Summons for Judgment the learned Judge granted unconditional leave to defend to the second defendant but so far as the first defendant was concerned the learned Judge made a conditional order granting leave to defend on c condition that the first defendant furnished security in the sum of Rs. 15 0 The learned Judge further directed that if the first defendant failed to furnish such security he should be entitled to defend the suit only to the extent of Rs. 17 0 but if such security were furnished he would be at liberty to defend the entire claim. The first defendant was aggrieved by this order and he therefore preFerred Civil Revision Application No. 742 of 1963 and the plaintiffs also being aggrieved by this order preferred Civil Revision Application No. 887 of 1963. When these Revision Applications came up for hearing before Divan J. a point was raised on behalf of the first defendant in Civil Revision Application No. 742 of 1963 that it was not competent to a Judge of the City Civil Court to impose any conditions while granting leave to defendant and that the conditional order made by the learned Judge was therefore bad. Since this was a question of considerable importance affecting the practice and procedure of the City Civil Court Divan J. referred the question to a Division Bench and that is how these Revision Applications came up for hearing before us. But besides these Revision Applications there were also other Revision Applications in which the same question is involved and we therefore had those Revision Applications placed on Board for the purpose of enabling the learned advocates appearing on behalf of the parties in those eases to make their submissions sand we heard what they had to say in regard to the merits of the question. We also heard Mr. M. C. Shah learned advocate appearing on behalf of the petitioner in Civil Revision Application No. 1116 of 1951 though that Revision Application was not on Board since an identical question is involved in that Revision Application.

(2.) In order to appreciate the rival contentions urged in regard to the question before us it is necessary to refer to a few provisions of the Code of Civil Procedure and the Ahmedabad City Civil Court Rules. The Code of Civil Procedure was enacted with a view to consolidating and amending the laws relating to the procedure of Courts of civil judicature. By virtue of sub-sec (2) of sec. 1 the Code came into force on 1st January 1909. Sub-sec (3) of sec. 1 as it stood at the material time provided that the Code shall extend to the whole of India except (a) the Tribal areas in the State of Assam; (b) save as otherwise provided by the proviso the Scheduled Areas in the State of Madras and (c) the State of Jammu and Kashmir. The proviso to sub-sec. (3) of sec. 1 extended certain provisions of the Code to some of the territories within the Scheduled Areas in the State of Madras but it is not necessary to make any detailed reference to the same for the purpose of the present discussion. The Code was thus brought into force in the whole of India including the former State of Bombay barring only the excepted territories referred to in sub-sec. (3) of sec. 1. Now the Code is divided into two parts on Two lines of the Judicature Acts in England and the Rules made under those Acts. The first part consists of sections which constitute the main body of the Code and the second part consists of Rules set out in the First Schedule which refer merely to matters of machinery for working out the main provisions enacted in the sections. Taking first the sections we may straight go to Part X of the Code which is headed Rules and which consists of secs. 121 to 131. Section 121 enacts that the rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of part X. Section 122 then confers power on the High Court to make rules and by such rules to annul alter or add to all or any of the rules in the First Schedule and that section reads as follows:-

(3.) Sections 123 to 127 lay down the procedure for making of rules under sec. 122 and sec. 128 says that the rules so made shall not be inconsistent with the provisions in the body of the Code but subject thereto may provide for any matters relating to the procedure of Civil Courts including summary procedure. Sections 129 to 131 are not material and we need not therefore dwell on them Turning now to the Rules in the First Schedule we find that the Rules are classified in various Orders. There are as many as 51 Orders but the only Order with which we are concerned in the present Revision Applications is Order 37 which prescribes Summary Procedure. Rule 1 of that Order provides