GOKULPRASAD PODDAR Vs. RAMRIKHDAS PARASRAMPURIA AND CO

JUDGEMENT

(1.) This is an appeal against a decree passed by a Judge of file City Civil Court on a summary suit. A summons for judgment was taken out" by" the plaintiffs and conditional leave to defend was granted to the defendant, who is the appellant before us. The appellant failed to comply with the conditions on which he could defend the suit. Therefore the suit was placed on hoard for a decree and a decree was passed. It is against that decree that this appeal is preferred.

(2.) The first contention of Mr. Nain on behalf, of the appellant is that the suit is based on three oral agreements and therefore it was not maintainable as a summary suit. Now, the two agreements are referred "to in the plaint and these two agreements are that the defendant saw Ramrikhdas a partner of the plaintiffs at Muttra and it was then agreed between the parties that the plaintiffs should accept and honour 'hundis' drawn by the defendant against the plaintiffs and that the defendant should pay to the plaintiffs on demand the amounts of the said 'hundis' with interest thereon from the dates to payment at the rate of 6 per cent. per annum, and para. 3 of the plaint goes on to state that in pursuance of the said agreement and under instructions from the defendant, the plaintiffs honoured and paid three 'hundis' respectively dated 9-4-1950, 10-4-1950 and 10-4-1950, for the respective sums of Rs. 5,000, Rs. 5,000 and Rs. 2,000 drawn by the "defendant against Messrs. Ramrikhdas Chiranjilal Parasrampuria in favour of the Punjab National Bank Ltd. The 'hundis' are annexed to the plaint and they show that they were not drawn in favour of the plaintiff-film but they were drawn upon Ramrikhdas Chiranjilal Parasrampuria. In the affidavit in support of the summons the plaintiffs stated that in the plaintiff-firm Ramrikhdas and Chiranjilal are partners and the 'hundis' were drawn upon Ramrikhdas Chiranjilal pursuant to the instructions of the defendant, and therefore Mr. Nain says that really in this affidavit the plaintiffs are relying on a third agreement which is that the plaintiffs were liable for 'hundis' not drawn upon the plaintiff-firm but upon the individual Ramrikhdas Chiranjilal Parasrampuria.

(3.) Now, the question raised by Mr. Nain is of considerable importance because this question often arises where leave to defend is either refused or conditionally granted. The question we have to consider is whether a summary suit would lie when the plaintiff's claim is not based upon any written agreement but is based upon an agreement in order to prove which evidence would have to be given by the plaintiff. It seems that a view was taken in - Parmanand Waneklal v. Special Land Acquisition Officer, Ahmedabad', F. A. No. 16 of 1953, D/- 3-12-1954 (Bom) (A), by myself and my brother Mr. Justice Shah and also in - 'Hirachand Parsaram v. Lach-mandas Parsaram', Civil Revn. Appln. No. 536 of 1953, D/- 11-12-1953 (Bom) (B), by me sitting singly that where the plaintiff has got to prove an oral agreement, he could not enforce that agreement by a summary suit. It seems to us that that view should be reconsidered oil a more careful consideration of the rule framed by us with regard to the filing of a summary suit. Now, the High Court has amended Order 37, Rule 2, and the amended rule to the extent that it is material runs as follows :