ASHOK KAPUR Vs. PAWAN KUMAR

JUDGEMENT

(1.) PAWAN Kumar, the plaintiff-respondent, filed a suit for the recovery of Rs. 14 lacs. This suit was filed under Order 37 of the Code of Civil Procedure. Vide order dated July 15, 1992, the defendants were restrained from disposing of the Panch Rattan Hotel. The notice was directed to be issued for July 23, 1992. On that day, the Court noticed that the respondents had not been served. A direction for issue of a fresh notice for July 31, 1992 was given. The interim injunction was continued. On August 12, 1992, defendant Nos. 3 and 4 namely M/s. Subhash Kapur and Deepak Kapur put in appearance and sought time to file the written statement. The case was adjourned to September 21, 1992. On September 19, 1992, the trial Judge noticed that he will be on leave on September 21, 1992. Thus, he directed that the case be posted on October 29, 1992. The interim injunction was extended. On October 29, 1992, written statement on behalf of the defendants was filed. The Court also noticed that "it has transpired that previously the summons of this case were served in the ordinary manner, whereas the counsel for the plaintiff states that the suit is under Order 37 C.P.C. and the summons as prescribed under Order 37 C.P.C. has been served upon the defendants". On behalf of the defendants, it was pleaded that the suit should be treated as an ordinary one. The Court adjourned the matter to November 9, 1992. After a consideration of the mater, the Court accepted the plaintiff- respondent's plead vide order dated November 20, 1992. Hence, this revision petition by defendant Nos. 2 to 4. The other two defendants have been impleaded as proforma-respondents.

(2.) MR . Akshay Bhan, learned counsel for the petitioners contended that the summons having been issued in the ordinary process, the provisions of Order 37 Rule 2 were violated. Still further, after the receipt of the summons, the petitioners had filed the written statement on October 29, 1992. Thus, the plaintiff-respondents had waived his right for the suit being tried summarily. Relying on the decision of a Full Bench of this Court in Prem Sagar and others v. Phul Chand and others, 1983 P.L.R. 797 : 1983(2) R.C.R.(Rent) 405 : 1984 R.R.R. 576, the learned counsel contends that the respondents should be deemed to have waived their right for a summary trial of the suit. It should now be tried as an ordinary suit.

(3.) ON January 24, 2002, the original record was sent for. It has been received.