NAVINCHANDRA BABULAL BHAVSAR Vs. BACHUBHAI DHANABHAI SHAH

JUDGEMENT

(1.) This Civil Revision Application is made under sec. 115 of the Civil Procedure Code challenging the following order made by the Chief Judge of the Ahmedabad Small Cause Court in summary suit No. 3018 of 1966:-

(2.) Before we go to consider these contentions it will be expedient to refer in short to some of the provisions of the Civil Procedure Code and the Rules which provide for the summary procedure. The first part of the Civil Procedure Code consists of sections which constitutes the main body of the Code and the second part consists of rules put in the First Schedule which provide for the mode and method in which the main provisions of the Code are to be applied in practice. The object of the Civil Procedure Code is to lay down the law relating to the procedure of the Courts of Civil Judicature and it envelopes within its ambit a variety of causes and civil litigation. In some causes and litigation looking to their nature the need of urgency in their disposal and realisation of decretal amount and which causes are inherently less complex than others being claims of liquidated amounts only the Legislature has thought fit to provide a different treatment while laying down the rules of procedure. Part X of the main body of the Civil Procedure Code deals with rules. Section 121 provides 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 this part. Rule 122 gives power to certain High Courts to make rules and lays down that High Courts not being the Courts of a Judicial Commissioner may from time to time after previous publication make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence and may by such rules annul alter or add to all or any of the rules in the First Schedule. Sec. 128 lays down that the rules so made shall not be Inconsistent with the provisions of the body of the Code but subject thereto may provide for matters relating to the procedure of Civil Courts including the summary procedure. Turning to the second part of the Code which consists of various orders and rules made thereunder we may only refer to Order XXXVII which deals with summary procedure and the rules thereunder which have a bearing on the matter on hand. Rule 1 of Order XXXVII inter alia provides that the Order shall apply only to (i) the High Courts of Judicature at Fort William Madras and Bombay and (ii) any District Court or other Court specially empowered in this behalf by the State Government. Originally rule 2 made the summary procedure applicable to suits upon bills of exchange hundies or promissory-notes only and the defendant was not entitled either to appear or defend unless he applied for leave to appear and defend within 10 days of the service of summons and such leave was granted. Rule 3 is as follows:-

(3.) By virtue of this authority under the said sec. 9 the High Court of Gujarat prescribed rules regarding the procedure to be followed and the practice to be observed by the Ahmedabad Small Cause Court. Sub rule (2) of rule 1 of the Rules so prescribed is as follows:-