Quashed

Sangita Suryakant Nale v. Rajendra Murlidhar Zope

Bombay HC9 Apr 2013WP/7298/2012

Case brief

AI extract

What is this about?

In a writ petition, the High Court Bench at Aurangabad quashed and set aside the Civil Judge's order restoring a Summary Suit against the petitioner for irregular reasons. The writ court held the trial court failed to apply specific summary suit provisions properly.

What did the court decide?

The impugned judgment and order dated 30th July, 2012 passed by the Civil Judge, Junior Division, Bhusawal was quashed and set aside.

Sangita Suryakant Nale Vs Rajendra Murlidhar… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.7298 OF 2012

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Smt. Sangita Suryakant Nale,
Age: 41 years, Occ: Agri.,
R/o. 5, Bhushan Colony,
Behind M.J. College, Jalgaon,
District Jalgaon. ...PETITIONER

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VERSUS

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Rajendra s/o Murlidhar Zope,
Age: 47 years, Occ: Business,
R/o. Makarand Nagar,
N.H. No.6, Varangaon,

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Tq. Bhusawal, Dist.Jalgaon. ...RESPONDENT

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...

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Mr. Kisjhor C. Sant, Advocate for petitioner.
Mr. B.R. Kedar, Advocate for respondent.

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...

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CORAM: S.S. SHINDE, J.

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 DATE : 9TH APRIL,2013

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ORAL JUDGMENT :

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.Rule. Rule made returnable forthwith.

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With the consent of the parties, the petition is

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taken up for final disposal.

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2.The petitioner herein, filed Summary Suit

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No. 1 of 2012 against the present respondent
claiming Rs. 1,15,100/-. It is the case of the
petitioner that, on 22nd June, 2012 summons was
served upon the respondent. On 26th June, 2012
the respondent appeared without giving notice to

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the petitioner. The respondent did not file
written statement and filed an application for an

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adjournment to file written statement. On 7th

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July, 2012 the petitioner filed application below
Exhibit-11 under Order 37 Rule 2(3) of the Code of

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Civil Procedure praying for quick decision of the
case since the respondent failed to seek leave to

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defend the suit. On 11th July, 2012 the Civil
Judge, Junior Division, Bhusawal decreed the suit
in favour of the petitioner. It is further case of

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the petitioner that, in stead of filing appeal
aggrieved by the judgment and decree, the
respondent filed Misc. Civil Application No. 75 of
2012 praying for setting aside the judgment and

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order dated 11th July, 2012 and also for leave to
defend the case. The petitioner herein, appeared

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and resisted the claim of the respondent. On 30th
July, 2012 the Civil Judge, Junior Division,
Bhusawal allowed the application and Summary Suit
No. 1 of 2012 came to be restored. Hence this writ
petition.

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3.The learned Counsel appearing for the
petitioner invited my attention to the provisions
of Order 37 Rule 1 to 3 of the Code of Civil
Procedure and submitted that, the ground on which
suit is restored is not available in case of
summary suit. He submits that, at least it is not
apparent from reading of the impugned order that,
the trial Court has invoked provisions of Rule 7
of Order 37 of the Code of Civil Procedure and
then concluded that, the plaintiff has not filed
affidavit as contemplated under Order 18 Rule 4 of
the Code of Civil Procedure and therefore, the

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order passed by the trial Court needs to be
recalled. It is submitted that, ordinary

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procedure made applicable to other suits
instituted is not applicable to the summary suits

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under Order 37 of the Code of Civil Procedure.
Therefore, he submits that, the writ petition
deserves to be allowed.

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4.On the other hand, the learned Counsel
appearing for the respondent submits that, taking
recourse to the provisions of Rule 7 of Order 37
of the Code of Civil Procedure, the Court held
that, since there is no affidavit filed by the
petitioner-plaintiff, in view of the provisions of
order 18 Rule 4 of the Code of Civil Procedure and
therefore, the Court has rightly recalled the
earlier order. Therefore, this Court may not
interfere in the impugned order. He also tried to
advance the arguments on merits contending that,
summons which was served upon the defendant was
not in a format which is prescribed under Rule 2
of Order 37 of the Code of Civil Procedure.

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5.I have given careful consideration to the

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rival submissions. With the able assistance of the
Counsel for the parties, perused the entire

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material placed on record. Upon careful perusal

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of paragraph-7 of the impugned judgment, it
appears that, the trial Court has allowed the
application on the ground that, the plaintiff-
petitioner has not filed affidavit in support of
claim under Order 18 Rule 4 of the Code of Civil

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Procedure and which has caused serious prejudice
to the rights of the defendant. Except this
observation, there is no discussion how the
provisions of Order 18 Rule 4 of the Code of Civil
Procedure are applicable to the summary suit. The
contention of the Counsel for the respondent that,
the plaintiff-petitioner is supposed to file
affidavit in support of plaint under Order 18 Rule
4 of the Code of Civil Procedure is also not a
part of reasons recorded by the trial Court.

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6.Therefore, in my opinion, the impugned

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judgment and order dated 30th July, 2012 passed by

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the Civil Judge, Junior Division, Bhusawal in
Misc. Civil Application No. 75 of 2012 deserves to

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be quashed and set aside. Accordingly, following

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order.

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: ORDER :

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(i) The impugned judgment and order dated

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30th July, 2012 passed by the Civil Judge, Junior
Division, Bhusawal in Misc. Civil Application No.
75 of 2012 is quashed and set aside. Misc. Civil
Application is restored to its original file.

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(ii)The concerned Court is directed to decide

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the Misc. Civil Application No. 75 of 2012 afresh
within one month from today.

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(iii)All the contentions of the parties are
left open to be agitated before the concerned
Court.

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(iv)This Court has not expressed any opinion

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on merits and set aside the impugned judgment and
order only on the ground that, the trial Court has

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not assigned any reasons in support of the finding
recorded that, non filing of affidavit in support

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of the plaint under Order 18 Rule 4 of the Code of
Civil Procedure has caused serious prejudice to
the rights of the parties.

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(v)It is needless to clarify that, the
decree passed in Summary Suit No. 01 of 2012 shall

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not take effect till the Misc. Civil Application
No. 75 of 2012 is decided afresh.

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(vi)Rule made absolute on above terms. The

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writ petition stands disposed of.

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 sd/-
 [S.S. SHINDE, J.]

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sut/Apr13

Sangita Suryakant Nale v. Rajendra Murlidhar Zope

Case brief

What is this about?

What did the court decide?

Sangita Suryakant Nale v. Rajendra Murlidhar Zope

Case brief

What is this about?

What did the court decide?

What the court decided

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