Case Note & Summary
The appellant, Ramesh Shende, was the defendant in a summary suit filed by the respondent, Narayan Wakodikar, under Order XXXVII of the Code of Civil Procedure, 1908, for recovery of Rs.2,50,000 based on a dishonoured cheque. The trial court (3rd Joint Civil Judge, Senior Division, Nagpur) issued summons to the defendant in Form 4 (as per the amended form notified in the Maharashtra Government Gazette dated 15th September 1983) instead of the prescribed Form 4-A under Order XXXVII CPC. The summons was served on 09.07.2004. The defendant appeared on 03.08.2004 and filed an application (Exh.9) contending that the summons was not in the prescribed form and sought quashing of the summons and discharge. The trial court rejected this application and decreed the suit for Rs.2,50,000 with 18% interest per annum. The defendant appealed. The High Court examined the summons and found that it did not contain the mandatory warning that the defendant must apply for leave to defend within 30 days (or the specified period) and that failure would entitle the plaintiff to a decree. The court held that the summons was defective and not in compliance with Order XXXVII Rule 2 CPC read with Form 4-A. The service of such summons was invalid. The court further held that the defendant's application, though labelled as one for quashing summons, should have been treated as an application for leave to defend. The trial court's rejection of the application and the consequent decree were set aside. The appeal was allowed, the decree was quashed, and the suit was remanded back to the trial court for fresh disposal after giving the defendant an opportunity to file an application for leave to defend.
Headnote
A) Civil Procedure - Summary Suit - Order XXXVII CPC - Summons in Form 4 instead of Form 4-A - The court held that the summons issued in Form 4 (amended form notified in Maharashtra Gazette) was not in compliance with the mandatory requirement of Form 4-A under Order XXXVII Rule 2 CPC, as the form did not contain the requisite warning that the defendant must apply for leave to defend within 10 days (or as specified) and that failure would entitle the plaintiff to a decree. The service of such defective summons was invalid, and the defendant's application for leave to defend could not be rejected. (Paras 1-5) B) Civil Procedure - Summary Suit - Leave to Defend - Order XXXVII Rule 3 CPC - The court observed that the defendant had appeared and filed an application pointing out the defect in summons, which should have been treated as an application for leave to defend. The trial court erred in rejecting the application and decreeing the suit without giving the defendant an opportunity to defend. (Paras 3-5)
Issue of Consideration
Whether the summons issued in a summary suit under Order XXXVII CPC in Form 4 (instead of the prescribed Form 4-A) is valid and whether the defendant's application for leave to defend can be rejected on that basis.
Final Decision
Appeal allowed. Decree dated 06.12.2005 in Summary Suit No.98/2000 is quashed and set aside. Suit remanded back to trial court for fresh disposal after giving defendant opportunity to file application for leave to defend.
Law Points
- Summary suit procedure
- Order XXXVII CPC
- defective summons
- Form 4 vs Form 4-A
- leave to defend
- service of summons
- mandatory compliance
