Case Note & Summary
The petitioner, K R Patel HUF, filed a summary suit under Order XXXVII CPC against the respondents, M/s M M Developers and its partners, in the City Civil Court, Greater Mumbai. The respondents were granted conditional leave to defend by order dated 04.08.2014, requiring them to deposit Rs.64,63,096 within six weeks. This order was challenged by the respondents in Writ Petition No.9973 of 2014, which was dismissed on 13.11.2014. The respondents then approached the Supreme Court via SLP No.35412 of 2014, which was also dismissed but granted six weeks' time to deposit. The respondents filed an application for extension of time, which was allowed by the City Civil Court on 04.02.2015, extending time by two weeks. The petitioner challenged this extension in Writ Petition No.1244 of 2015, which was allowed. On 18.02.2015, the City Civil Court passed an order noting that the defendants had failed to file a written statement and directed the suit to proceed without it. The petitioner challenged this order in the present writ petition. The High Court held that once conditional leave to defend is granted, the suit must proceed in the ordinary manner under Order XXXVII Rule 3(6)(b) CPC. The provision for proceeding without a written statement applies only when leave is not granted or is refused. The consequence of non-compliance with the condition is that the leave may be revoked and the plaintiff may be entitled to a decree, but the court cannot revert to the stage of no written statement. The impugned order was quashed and set aside, and the City Civil Court was directed to proceed with the suit in accordance with law.
Headnote
A) Civil Procedure - Summary Suit - Order XXXVII Rule 3(6)(b) CPC - Conditional Leave to Defend - The provision for proceeding without written statement applies only when leave to defend is not granted or is refused; once conditional leave is granted, the suit must proceed in the ordinary manner and the court cannot direct the suit to proceed without written statement merely because the condition of deposit is not fulfilled. (Paras 5-6)
B) Civil Procedure - Summary Suit - Conditional Leave - Non-compliance with Deposit Condition - The consequence of non-compliance with a condition imposed while granting leave to defend is that the leave may be revoked and the plaintiff may be entitled to a decree; the court cannot bypass the leave granted and revert to the stage of no written statement. (Para 6)
Issue of Consideration
Whether the City Civil Court could proceed with the suit without the written statement of the defendants under Order XXXVII Rule 3(6)(b) CPC after conditional leave to defend was granted but the condition of deposit was not complied with.
Final Decision
The High Court allowed the writ petition, quashed and set aside the impugned order dated 18.02.2015 passed by the City Civil Court, and directed the City Civil Court to proceed with the suit in accordance with law.
Law Points
- Order XXXVII Rule 3(6)(b) CPC
- conditional leave to defend
- summary suit procedure
- failure to deposit amount
- proceeding without written statement
Case Details
Writ Petition No.1857 of 2015
Shri. Sharan Jagtiani with Ms. Sheetal Shah & Shri. Aditya Pimple i/by M/s. Mehta & Girdharlal for the Petitioner; Shri. Javeed Hussein with Ms. Mubashir Hussein, Shri. Sangram Lotankar, Shri. Alice Shaikh for the Respondents
K R Patel HUF through its Karta Mr. Kirit R Patel
M/s. M. M. Developers and its partners
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Nature of Litigation
Writ petition challenging an order of the City Civil Court directing the suit to proceed without the written statement of the defendants in a summary suit under Order XXXVII CPC.
Remedy Sought
The petitioner sought quashing of the order dated 18.02.2015 passed by the City Civil Court, Greater Mumbai, which directed the suit to proceed without the written statement of the defendants.
Filing Reason
The petitioner challenged the order on the ground that the course of action adopted by the City Civil Court was not contemplated by Order XXXVII Rule 3(6)(b) CPC, as conditional leave to defend had already been granted.
Previous Decisions
The City Civil Court granted conditional leave to defend on 04.08.2014, requiring deposit of Rs.64,63,096. This was challenged in WP No.9973/2014 (dismissed on 13.11.2014) and SLP No.35412/2014 (dismissed with six weeks' time). Extension of time was granted on 04.02.2015, which was set aside in WP No.1244/2015.
Issues
Whether the City Civil Court could proceed with the suit without the written statement of the defendants under Order XXXVII Rule 3(6)(b) CPC after conditional leave to defend was granted but the condition of deposit was not complied with.
Submissions/Arguments
The petitioner argued that once conditional leave to defend is granted, the suit must proceed in the ordinary manner and the court cannot direct the suit to proceed without a written statement.
The respondents conceded that the impugned order could not be sustained in light of the legal position.
Ratio Decidendi
Under Order XXXVII Rule 3(6)(b) CPC, the provision for proceeding without a written statement applies only when leave to defend is not granted or is refused. Once conditional leave is granted, the suit must proceed in the ordinary manner. Non-compliance with the condition does not revive the stage of no written statement; the proper remedy is to seek revocation of leave and a decree.
Judgment Excerpts
The said order has been challenged on the ground that the course of action sought to be followed by the Learned Judge of the City Civil Court is not contemplated by Order XXXVII Rule 3(6)(b) of the CPC.
Once the conditional leave is granted, the suit has to proceed in the ordinary manner and the stage of proceeding without written statement as contemplated by Order XXXVII Rule 3(6)(b) would not be attracted.
Procedural History
The City Civil Court granted conditional leave to defend on 04.08.2014. The respondents challenged this in WP No.9973/2014 (dismissed on 13.11.2014) and SLP No.35412/2014 (dismissed with six weeks' time). Extension of time was granted on 04.02.2015, which was set aside in WP No.1244/2015. On 18.02.2015, the City Civil Court directed the suit to proceed without written statement. The petitioner filed the present writ petition on 09.03.2015.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXXVII Rule 3(6)(b)
