Jammu & Kashmir High Court
Bal Krishan vs . Jugal Kishore on 27 March, 2019
Equivalent citations: AIR 2019 JAMMU AND KASHMIR 188, AIRONLINE 2019 J AND K 632
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CR No. 10/2014
Date of order: 27 .03.2019
Bal Krishan vs. Jugal Kishore
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the petitioner(s) : Mr. Garima Gupta Advocate
For the Respondent(s) : Mr. Sunny Mahajan Advocate
i) Whether approved for reporting in Yes Law journals etc.: ii) Whether approved for publication in press: Yes/No 1 This revision petition in terms of Section 115 of the CPC is directed against
the order dated 08.03.2014 passed by the learned District Judge, Kathua (hereinafter referred to as the 'trial Court') whereby the respondent-defendant has been granted the leave to defend the suit under Order 37 Rule 3(5) of CPC.
2. Facts of the case lie in a very narrow compass. The petitioner has instituted a suit for recovery against the respondent under Order 37 of CPC. In the plaint, it is contended that the petitioner is the sole proprietor of M/S Labotra Rice Mills situated at village Mehtabpur and has, on the request of the respondent, supplied rice to him from time to time within the period ranging from 14.04.2005 to 16.03.2007. It is claimed that the respondent liquidated the entire outstanding amount payable till 16.03.2007. It is stated that thereafter also, from 02.07.2007, the respondent received supply of rice from the petitioner and made payments either in cash or through Bank. It is averred that at one point of time, an amount of Rs.13,17,376/- fell due against the respondent. The petitioner claimed that the aforesaid amount became recoverable along with interest at the rate of 12% per CR 10/2014 Page 1 of 8 annum. The suit was based on the receipts allegedly executed by the respondent. The respondent was summoned in the suit as per the procedure laid down in Order 37 of CPC.
3 In response to the summons issued, the respondent entered appearance on 26.04.2011 and furnished his address for further correspondence through a written application which was supported with an affidavit. It was admitted by the respondent that he was served with summons on 16.04.2011. In keeping with the statutory mandate contained in Order 37 Rule 3 of CPC, the petitioner served a summon for judgment on the respondent in form 4A of appendix B, but not exactly on the same address as was furnished by the respondent while entering appearance. The summons, however, could not be served on the respondent for the reason that at the relevant point of time the respondent was out of station. The summons were sent to the respondent repeatedly, but for one reason or the other, he could not be served. It was ultimately on 29.09.2011 a copy of the summon for judgment was delivered to the wife of the respondent and a copy of it was also pasted on the outer door of his house. As per the summons, the respondent was notified to attend the Court on 20.10.2011. It is revealed from the record that he attended the Court along with his counsel on the date fixed and sought time to file an application seeking leave to defend. He was permitted by the Court to do the needful and, accordingly, the respondent filed a written application seeking leave to defend on 24.10.2011. Anticipating objection from the petitioner and being conscious that he was late in filing the application, he also sought condonation of delay by filing a separate application. He explained the reasons for filing the application seeking leave to defend belatedly. In short, the cause shown was that in the summons which were served upon his wife, the Court had directed him to appear in the Court on 20.10.2011. He, accordingly, put his appearance on the said date and sought time to file an application seeking leave to defend. He, therefore, submitted that the delay caused in seeking leave to defend is neither deliberate nor intentional and, therefore, was condonable.
CR 10/2014 Page 2 of 84. The application of the respondent seeking leave to defend was contested by the petitioner on the ground that the same was beyond the statutory period of 10 days prescribed under Order 37 Rule 3(5) of CPC and that he had no plausible explanation to offer for such delay. The right of the respondent to seek leave to defend was also disputed on merits as well. It was contended by the petitioner that once the receipts executed by the respondent are not disputed by him, he cannot be said to have any valid defence in the suit.
5. The trial Court, after considering the rival contentions and going through the record concluded that the respondent had sufficiently explained the cause for delay in filing the application beyond statutory period and had also made out a case warranting grant of leave to defend in his favour. As a result, the trial Court allowed the application and granted unconditional leave to defend to the respondent. It is this order of the trial Court which is assailed in this revision petiton by the petitioner on the grounds mentioned hereinafter.
6. Having heard learned counsel for the parties and perused the record, I am of the view that the petitioner has not made out a case for exercise of revisional jurisdiction to interfere with the order of the trial Court.
7. Learned counsel for the respondent has taken a preliminary objection with regard to the maintainability of the revision petition against the order impugned. It is argued that the order granting leave to defend in a summary suit is only an interlocutory order against which no revision in terms of Section 115 lies. Learned counsel also contends that having regard to the nature of order that is passed under Order 37 Rule 2(5) which is discretionary in nature, the revisional jurisdiction to interfere with such orders should not be exercised.
8. Per contra, learned counsel for the petitioner urges that the order impugned, if it had been passed in favour of the petitioner, would have finally CR 10/2014 Page 3 of 8 disposed of the suit as in that eventuality, the refusal of leave to defend would have entailed passing of the judgment in favour of the petitioner.
9. I have considered the rival contentions on the issue. Proviso to Section 115(1) of CPC makes it abundantly clear that where the order under challenge in a revision petiton is reversed in favour of the party applying for revision and it would finally dispose of the suit or proceedings, the revision petiton would be maintainable. In the instant case, the order impugned has been passed by the trial Court under the provisions of Order 37 Rule 3(5) of CPC whereby the leave to defend has been granted to the respondent. Had this order been passed in favour of the petitioner, the result would have been the passing of decree in the suit in favour of the petitioner. That being the position, the objection raised by the respondent with regard to the maintainability of the revision petiton does not hold any substance.
10. Hon'ble the Supreme Court in the case of Wada Arun Asbestos (P) Ltd. Vs Gujarat Water Supply & Sewerage Board 2009(2) SCC 432 took the same view. Para 18 of the said judgment is relevant in context of the controversy raised in this petition and is reproduced hereunder:
"18. A statutory right conferred on a litigant cannot ordinarily be taken away. A civil revision application might have been maintainable as against the order dated 27.11.2002 granting conditional leave. The said remedy was also available where leave to defend a suit is refused. Leave to defend a suit, as noticed hereinbefore, should ordinarily be granted. It was, therefore, permissible for the defendant to raise the said contention in the appeal although it had asked for time to comply with the conditions".
11. From the reading of aforesaid judgment and taking note of the proviso to Section 115(1) and the provisions of Order 37 Rule 3(5) of CPC, I am of the view CR 10/2014 Page 4 of 8 that the present revision petiton is maintainable against the order granting or refusing leave to defend the suit.
12 Now, the question that falls for determination is with regard to the sustainability of the order passed by the Court below. For appreciating the question, it would be appropriate to briefly notice the admitted facts emerging in this case which are as follows:.
1. The petitioner has filed a suit for recovery of certain amount based on the receipts allegedly executed by the respondent.
2. The summons were issued to the respondent for appearance on 26.04.2011 on which date the respondent entered appearance and filed address for further correspondence. This was done by the respondent by way of written application supported by an affidavit. The respondent has been served summons under sub-rule 2 of Order 37 on 16.04.2011.
3. The summons in terms of Rule 3(4) for judgment in form 4A of appendix B were served on the respondent.
4. The summons issued were ultimately served on 29.09.2011 by delivering copy thereof to the wife of the respondent, a copy of which, was also pasted on the outer house of the respondent.
5. As per the summons served on the respondent, he was notified to attend the Court on 20th October 2011.
6. The respondent attended the Court on 20th October,211 and sought adjournment to file an application seeking leave to defend.
CR 10/2014 Page 5 of 87. On 24th October,2011, an application seeking leave to defend was filed which was accompanied by an application for condonation of delay.
13. In the background of aforesaid admitted factual position emerging from the pleadings of the parties, the order impugned granting leave to defend is required to be appreciated. Undoubtedly, the suit is filed as a summary suit under Order 37 Rule 1 of CPC. Therefore, as envisaged under Rule 3(5) of Order 37 CPC, the petitioner, after respondent had entered his appearance in response to the summons issued under Rule 2 of Order 37 of CPC, was mandatorily required to serve summons for judgment in form 4A of appendix B or such other form as may be prescribed, returnable not less than 10 days from the date of service. The summons were required to be supported by an affidavit verifying the cause of action and the amount claimed and also sating that in his belief, there is no defence to the suit. For expediency, it would be appropriate to reproduce Rule 3(4) of Order 37 of CPC which goes as under:
"If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summon for judgment in Form No.4-A in Appendix B or such other form as may be prescribed from time to time returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action, amount claimed and stating that in his belief, there is no defence to the suit".
14. From the bare reading of the provisions of Rule 3(4) of Order 37 of CPC, it is clear that the summons for judgment to be served upon the respondent are to be made returnable not less than 10 days, but in the instant case, the summons in form 4A of appendix B were issued by the trial Court on 26.09.2011 and were made returnable on 20th October 2011. The summons issued by the Court below at the request of the petitioner to the respondent are, on the face of it, defective CR 10/2014 Page 6 of 8 and not in tune with the provisions of Rule 3(4) of Order 37 CPC. Be that as it is, the fact remains that the respondent appeared before the Court on the notified date and sought time to file leave to defend which was also granted by the trial Court. On 24th October 2011, the application for leave to defend was filed by the respondent.
15. It is true that as mandated by 3(4) of Order 37 of CPC, the respondent was obliged to file application seeking leave to defend within 10 days from the service of such summons for judgment, but, for the reasons well explained by the respondent, such application could not be moved within the statutory period. The plea of the respondent that the summons served upon him notifying the date of appearance before the Court as 20th October, 2011 made him believe that further action in the suit was to be taken by him on the notified date. It is equally true that had the respondent been prompt, he would have filed the application on 20 th October 2011 itself, but he sought time to file application seeking leave to defend and the same was granted by the trial Court. This is how he filed the application on 24th October 2011 which was accompanied by an application for condonation of delay. The reasons given by the respondent to explain the delay are cogent and plausible. That apart, having regard to the fact that the summons for judgment served upon the respondent were itself defective, the petitioner cannot be non- suited on the ground that he failed to respond to the summons for judgment within the statutory period of 10 days.
16. The trial Court has appreciated the aforesaid aspect very correctly and this Court has no reason or material to take a view contrary to the one taken by the trial Court. Otherwise also, the contours of power of revision vested in this Court under Section 115 of CPC are well established. The order impugned is discretionary in nature and does not call for any interference in the exercise of revisional jurisdiction. More so, when the same is not found perverse, irrational or CR 10/2014 Page 7 of 8 beyond the jurisdiction of the trial Court (See: M.L.Sethi vs R.P.Kapur, 1973 ( I) SCR 697)
17. Learned trial Court has, on facts, found that the defence taken by the respondent is plausible and the issues raised are triable. From the pleadings of the parties, it is clear that the suit of the petitioner is based on certain vouchers/bills/receipts and statement of accounts, zerox copy of which alone are on record. The trial court, on examination of the bill/documents on which the suit is based, has found the same full of cuttings and interpolation. The respondent in his reply has not only disputed the payment due to the petitioner, but has also claimed that the bills placed on record by the petitioner are fabricated. In short, the trial Court, on appreciation of the material on record, has found that the respondent has, a prima facie good defence to offer and issue raised are triable and has, thus, granted the leave to defend without any pre-conditions.
18. This Court, in the exercise of revision jurisdiction, may not be in a position to re-appreciate the facts and come to the conclusion different from the one arrived at by the trial Court. Such being the nature of jurisdiction to be exercised under Section 115 of CPC, I do not find it to be a fit case for interference with the order impugned. The reliance placed by the learned counsel for the petitioner on the judgment of Punjab and Haryana High Court in the case of Harpreet Singh vs Punjab and Sind Bank, 2007(23) RCR (Civil) 916) is clearly misplaced. The judgment is distinguishable on facts and does not apply in the facts and circumstances of the instant case.
19. In view of the aforesaid analysis, this petition is found to be without merit and the same is, accordingly, dismissed.
(Sanjeev Kumar) Judge Jammu SANJEEV KUMAR UPPAL 27.03.2019 2019.03.30 10:49 I attest to the accuracy and integrity of this document Sanjeev CR 10/2014 Page 8 of 8