in VINODAN T. V/s. UNIVERSITY OF CALICUT . It is manifest from the aforestated observation of the Supreme Court that where the facts in a summary suit are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses, leave should not be denied. In effect, the right of the defendant to interrogate/cross-examine the plaintiff or his witnesses flows from the leave to defend granted to him under Order 37 Rule 3(5) CPC and not independently. In consequence, it is not open to the defendant to now claim that his right to cross-examine the plaintiff would not be part and parcel of his leave to defend the suit. As such a right cannot be claimed automatically by the defendant and leave to defend was, in fact, granted to him subject to the condition of a pre-deposit, it is not open to the defendant to get over the same and indirectly try to defend the suit by asking for permission to cross-examine the plaintiff. = Order 37 Rule 3(5) CPC and not independently. In consequence, it is not open to the defendant to now claim that his right to cross-examine the plaintiff would not be part and parcel of his leave to defend the suit. As such a right cannot be claimed automatically by the defendant and leave to defend was, in fact, granted to him subject to the condition of a pre-deposit, it is not open to the defendant to get over the same and indirectly try to defend the suit by asking for permission to cross-examine the plaintiff. =The trial Court therefore erred in drawing a parallel from a principle that would apply in an ordinary suit and deciding the I.A. in favour of the defendant. Unless and until the petitioner/ defendant complies with the conditional order, whereby he was granted leave to defend the suit in O.S.No.954 of 2015, it is not open to him to seek to cross-examine either the plaintiff or any witness examined on his behalf or advance arguments. The order under revision is accordingly set aside and the civil revision petition is allowed
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.3465 OF 2017
13-10-2017
Sarikonda Srinivasa Raju .. Petitioner
K.Ravi Prasad .. Respondent
Counsel for petitioner :Sri P.Surya Narayana Murthy
Counsel for respondent:Smt. G.Jyothi Kiran
<Gist:
>Head Note:
? CASES REFERRED:
1. AIR 1955 SC 425
2. AIR 1963 SC 1526
3. (1988) 4 SCC 619
4. (2011) 6 SCC 321
5. (1991) Suppl. 1 SCC 191
6. (2002) 4 SCC 736
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION No.3465 of 2017
O R D E R
By order dated 04.07.2017, the learned XIII Additional
District and Sessions Judge at L.B.Nagar, Ranga Reddy District,
allowed I.A.No.393 of 2017 in O.S.No.954 of 2015 holding that the
defendant in the suit, the petitioner in the said I.A., was entitled to
cross-examine the plaintiff on the affidavit filed by him for passing
judgment and to argue the matter. Aggrieved thereby, the plaintiff
is before this Court by way of this revision under Article 227 of the
Constitution.
O.S.No.954 of 2015 was filed by the petitioner/plaintiff
under Order 37 CPC for recovery of money on the strength of
promissory notes. Earlier, when the defendant in the said suit filed
an application under Order 37 Rule 3 (5) CPC seeking the leave of
the Court to defend the suit, the trial Court granted him leave
conditionally. Aggrieved by the condition imposed that he should
deposit a sum of Rs.40,00,000/- within a time frame, he filed
C.R.P.No.1662 of 2017 before this Court. The said revision petition
was dismissed by this Court on 11.04.2017 holding that the
condition imposed was not onerous.
Having suffered the said order, it is an admitted fact that the
defendant in the suit failed to deposit the amount as directed by
the trial Court as a condition precedent for grant of leave to defend
the suit. He however filed the subject I.A.No.393 of 2017 therein
detailing the alleged erroneous claims made by the plaintiff in his
affidavit to pass judgment and asserted that unless he
cross-examined the plaintiff, the true facts would not come to light.
As the trial Court had already posted the suit for judgment, he
prayed for re-opening of the suit so as to enable him to establish
his case. He further stated that no prejudice would be caused to
the plaintiff if he was permitted to cross-examine him on the
affidavit filed for passing judgment. SANGRAM SINGH V/s.
ELECTION TRIBUNAL KOTAH was cited, wherein the Supreme
Court held that even if a defendant is set ex parte, he would still be
entitled to take part in the proceedings from that stage, including
the cross-examination of witnesses who are examined thereafter,
subject to such terms and conditions as the Court may impose.
Accepting this ratio, the trial Court opined that though the
defendant had failed to comply with the earlier order requiring him
to make a pre-deposit as a condition precedent for grant of leave to
defend the suit, his right to cross-examine the plaintiff and argue
would not be barred and accordingly allowed the I.A. Hence, this
revision.
Heard Sri P.Surya Narayana Murthy, learned counsel for
the petitioner/plaintiff, and Smt.G.Jyothi Kiran, learned counsel
for the respondent/defendant.
At the outset, it may be noted that Order 37 CPC prescribes
the summary procedure to be followed in the classes of suits to
which it applies. The essence of a summary suit is that the
defendant therein is not entitled as of right to defend the suit, as in
an ordinary suit. He has to apply for leave to defend within a time
frame and such leave would be granted only if he succeeds in
disclosing facts that would make it necessary for the plaintiff to
prove consideration or such facts as the Court may deem sufficient
for granting leave. If no leave to defend is granted, the plaintiff
would be straightaway entitled to a decree.
The thrust of the summary procedure prescribed under
Order 37 CPC is to prevent unreasonable obstruction by a
defendant who has no real defence. Order 37 Rule 1 CPC details
the Courts and the suits to which such summary procedure would
apply. Suits based on bills of exchange, hundies and promissory
notes find mention in Order 37 Rule 1(2)(a) CPC. Order 37 Rule 2
details the procedure to be followed for institution of summary
suits and sub-rule (3) thereof provides that the defendant shall not
defend the suit unless he enters appearance and in default of his
entering appearance, allegations in the plaint shall be deemed to be
admitted and the plaintiff shall be entitled to a decree. Order 37
Rule 3 CPC deals with the procedure to be followed for appearance
of the defendant. Sub-rule (5) thereof states that the defendant
may, at any time within ten days from the service of the summons
for judgment, disclose such facts as may be deemed to be sufficient
to entitle him to defend the suit and leave to defend may be granted
to him unconditionally or upon such terms as may appear to the
Court to be just. Order 37 Rule 4 CPC reserves the power to the
Court to set aside a decree under special circumstances and grant
leave to the defendant to appear to the summons and defend the
suit. Order 37 Rule 7 CPC makes it clear that the procedure in
suits instituted in the ordinary manner would be applicable to
suits covered by summary procedure only to the extent not already
provided for in Order 37 CPC. It is therefore clear that the
procedure contemplated under Order 37 CPC, being a summary
procedure, cannot be put on par with the procedure followed in
ordinary suits in all respects.
Smt.G.Jyothi Kiran, learned counsel, would cite the
decisions of the Supreme Court in K.VENKATARAMIAH V/s.
A.SEETHARAMA REDDY , MODULA INDIA V/s. KAMAKSHYA
SINGH DEO and MAHADEV GOVIND GHARGE V/s. SPECIAL
LAND ACQUISITION OFFICER, UPPER KRISHNA PROJECT,
JAMKHANDI, KARNATAKA in support of her contention that it
would be within the discretion of the trial Court, in the interest of
justice, to permit a defendant to cross-examine the plaintiffs
witnesses notwithstanding the fact that such defendant has been
set ex parte. She would contend that failure on the part of her
client to deposit the amount in terms of the earlier order of the trial
Court, which was confirmed by this Court, would only result in his
being set ex parte and therefore, he should not be denied the right
to cross-examine the plaintiff on the affidavit filed by him for
passing judgment.
Opposing this plea, Sri P.Surya Narayana Murthy, learned
counsel, would contend that once the defendant suffered an order
requiring him to make a pre-deposit as a condition precedent for
leave to defend the suit and he failed to do so, it is not open to him
to get over the same by indirect means. Learned counsel would
argue that allowing him to cross-examine the plaintiff would be
nothing short of permitting him to defend the suit.
At this stage, it may be noted that none of the judgments
cited by Smt.G.Jyothi Kiran, learned counsel, relate to Order 37
CPC. As already noted supra, all principles applicable in ordinary
suits cannot be extended mutatis mutandis to suits covered by
Order 37 CPC. Only to the extent Order 37 CPC does not provide
the procedure to be followed in summary suits, the regular
procedure applicable to ordinary suits may be adopted. Be it noted
that a defendant cannot claim leave to defend a summary suit as a
matter of right, as he would in an ordinary suit. He cannot
therefore draw a parallel with a defendant in an ordinary suit in all
respects. Further, failure on the part of a defendant in a summary
suit to enter appearance automatically entails the suit being
decreed in favour of the plaintiff, as provided in Order 37 Rule 2(3)
CPC. The question of setting such a defendant ex parte at that
stage does not arise at all. The judgments cited, relating to ordinary
suits and a situation therein involving an ex parte defendant,
would therefore not be of guidance while dealing with a suit under
Order 37 CPC.
In the light of the rival contentions, the core issue that falls
for consideration before this Court is whether a defendant in a
summary suit under Order 37 CPC can claim the right to
cross-examine the plaintiff, having failed to comply with the
condition precedent for grant of leave to defend the suit.
The argument of Smt.G.Jyothi Kiran, learned counsel,
proceeds on the assumption that leave to defend a summary suit
would not encompass the right of the defendant to cross-examine
the plaintiff. If not, failure on the part of the defendant in
complying with the earlier order passed by the trial Court, to the
effect that he should deposit Rs.40,00,000/- as a condition
precedent for grant of leave would automatically bar him from
claiming the right of such cross-examination.
The next question, therefore, is whether the right to
cross-examine the plaintiff in a summary suit would fall within the
ambit of the defendants leave to defend the suit in terms of Order
37 Rule 3(5) CPC.
Both issues already stand settled. In RAJ DUGGAL V/s.
RAMESH KUMAR BANSAL , the Supreme Court was dealing with
the question whether leave to defend should be granted to the
defendant in a suit filed under Order 37 CPC and observed thus:
3. Leave is declined where the court is of the opinion that
the grant of leave would merely enable the defendant to
prolong the litigation by raising untenable and frivolous
defences. The test is to see whether the defence raises a real
issue and not a sham one, in the sense that if the facts
alleged by the defendant are established there would be a
good or even a plausible defence on those facts. If the court is
satisfied about that leave must be given. If there is a triable
issue in the sense that there is a fair dispute to be tried as to
the meaning of a document on which the claim is based or
uncertainty as to the amount actually due or where the
alleged facts are of such a nature as to entitle the defendant
to interrogate the plaintiff or to cross-examine his witnesses
leave should not be denied. .. (emphasis is mine)
This observation was reiterated and affirmed by the Supreme
Court in VINODAN T. V/s. UNIVERSITY OF CALICUT .
It is manifest from the aforestated observation of the
Supreme Court that where the facts in a summary suit are of such
a nature as to entitle the defendant to interrogate the plaintiff or
to cross-examine his witnesses, leave should not be denied. In
effect, the right of the defendant to interrogate/cross-examine the
plaintiff or his witnesses flows from the leave to defend granted to
him under Order 37 Rule 3(5) CPC and not independently.
In consequence, it is not open to the defendant to now claim
that his right to cross-examine the plaintiff would not be part and
parcel of his leave to defend the suit. As such a right cannot be
claimed automatically by the defendant and leave to defend was, in
fact, granted to him subject to the condition of a pre-deposit, it is
not open to the defendant to get over the same and indirectly try to
defend the suit by asking for permission to cross-examine the
plaintiff.
The trial Court therefore erred in drawing a parallel from a
principle that would apply in an ordinary suit and deciding the I.A.
in favour of the defendant. Unless and until the petitioner/
defendant complies with the conditional order, whereby he was
granted leave to defend the suit in O.S.No.954 of 2015, it is not
open to him to seek to cross-examine either the plaintiff or any
witness examined on his behalf or advance arguments.
The order under revision is accordingly set aside and the civil
revision petition is allowed. Pending miscellaneous petitions, if
any, shall stand closed in the light of this final order. No order as
to costs.
____________________
SANJAY KUMAR,J
13th OCTOBER, 2017.
CIVIL REVISION PETITION NO.3465 OF 2017
13-10-2017
Sarikonda Srinivasa Raju .. Petitioner
K.Ravi Prasad .. Respondent
Counsel for petitioner :Sri P.Surya Narayana Murthy
Counsel for respondent:Smt. G.Jyothi Kiran
<Gist:
>Head Note:
? CASES REFERRED:
1. AIR 1955 SC 425
2. AIR 1963 SC 1526
3. (1988) 4 SCC 619
4. (2011) 6 SCC 321
5. (1991) Suppl. 1 SCC 191
6. (2002) 4 SCC 736
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION No.3465 of 2017
O R D E R
By order dated 04.07.2017, the learned XIII Additional
District and Sessions Judge at L.B.Nagar, Ranga Reddy District,
allowed I.A.No.393 of 2017 in O.S.No.954 of 2015 holding that the
defendant in the suit, the petitioner in the said I.A., was entitled to
cross-examine the plaintiff on the affidavit filed by him for passing
judgment and to argue the matter. Aggrieved thereby, the plaintiff
is before this Court by way of this revision under Article 227 of the
Constitution.
O.S.No.954 of 2015 was filed by the petitioner/plaintiff
under Order 37 CPC for recovery of money on the strength of
promissory notes. Earlier, when the defendant in the said suit filed
an application under Order 37 Rule 3 (5) CPC seeking the leave of
the Court to defend the suit, the trial Court granted him leave
conditionally. Aggrieved by the condition imposed that he should
deposit a sum of Rs.40,00,000/- within a time frame, he filed
C.R.P.No.1662 of 2017 before this Court. The said revision petition
was dismissed by this Court on 11.04.2017 holding that the
condition imposed was not onerous.
Having suffered the said order, it is an admitted fact that the
defendant in the suit failed to deposit the amount as directed by
the trial Court as a condition precedent for grant of leave to defend
the suit. He however filed the subject I.A.No.393 of 2017 therein
detailing the alleged erroneous claims made by the plaintiff in his
affidavit to pass judgment and asserted that unless he
cross-examined the plaintiff, the true facts would not come to light.
As the trial Court had already posted the suit for judgment, he
prayed for re-opening of the suit so as to enable him to establish
his case. He further stated that no prejudice would be caused to
the plaintiff if he was permitted to cross-examine him on the
affidavit filed for passing judgment. SANGRAM SINGH V/s.
ELECTION TRIBUNAL KOTAH was cited, wherein the Supreme
Court held that even if a defendant is set ex parte, he would still be
entitled to take part in the proceedings from that stage, including
the cross-examination of witnesses who are examined thereafter,
subject to such terms and conditions as the Court may impose.
Accepting this ratio, the trial Court opined that though the
defendant had failed to comply with the earlier order requiring him
to make a pre-deposit as a condition precedent for grant of leave to
defend the suit, his right to cross-examine the plaintiff and argue
would not be barred and accordingly allowed the I.A. Hence, this
revision.
Heard Sri P.Surya Narayana Murthy, learned counsel for
the petitioner/plaintiff, and Smt.G.Jyothi Kiran, learned counsel
for the respondent/defendant.
At the outset, it may be noted that Order 37 CPC prescribes
the summary procedure to be followed in the classes of suits to
which it applies. The essence of a summary suit is that the
defendant therein is not entitled as of right to defend the suit, as in
an ordinary suit. He has to apply for leave to defend within a time
frame and such leave would be granted only if he succeeds in
disclosing facts that would make it necessary for the plaintiff to
prove consideration or such facts as the Court may deem sufficient
for granting leave. If no leave to defend is granted, the plaintiff
would be straightaway entitled to a decree.
The thrust of the summary procedure prescribed under
Order 37 CPC is to prevent unreasonable obstruction by a
defendant who has no real defence. Order 37 Rule 1 CPC details
the Courts and the suits to which such summary procedure would
apply. Suits based on bills of exchange, hundies and promissory
notes find mention in Order 37 Rule 1(2)(a) CPC. Order 37 Rule 2
details the procedure to be followed for institution of summary
suits and sub-rule (3) thereof provides that the defendant shall not
defend the suit unless he enters appearance and in default of his
entering appearance, allegations in the plaint shall be deemed to be
admitted and the plaintiff shall be entitled to a decree. Order 37
Rule 3 CPC deals with the procedure to be followed for appearance
of the defendant. Sub-rule (5) thereof states that the defendant
may, at any time within ten days from the service of the summons
for judgment, disclose such facts as may be deemed to be sufficient
to entitle him to defend the suit and leave to defend may be granted
to him unconditionally or upon such terms as may appear to the
Court to be just. Order 37 Rule 4 CPC reserves the power to the
Court to set aside a decree under special circumstances and grant
leave to the defendant to appear to the summons and defend the
suit. Order 37 Rule 7 CPC makes it clear that the procedure in
suits instituted in the ordinary manner would be applicable to
suits covered by summary procedure only to the extent not already
provided for in Order 37 CPC. It is therefore clear that the
procedure contemplated under Order 37 CPC, being a summary
procedure, cannot be put on par with the procedure followed in
ordinary suits in all respects.
Smt.G.Jyothi Kiran, learned counsel, would cite the
decisions of the Supreme Court in K.VENKATARAMIAH V/s.
A.SEETHARAMA REDDY , MODULA INDIA V/s. KAMAKSHYA
SINGH DEO and MAHADEV GOVIND GHARGE V/s. SPECIAL
LAND ACQUISITION OFFICER, UPPER KRISHNA PROJECT,
JAMKHANDI, KARNATAKA in support of her contention that it
would be within the discretion of the trial Court, in the interest of
justice, to permit a defendant to cross-examine the plaintiffs
witnesses notwithstanding the fact that such defendant has been
set ex parte. She would contend that failure on the part of her
client to deposit the amount in terms of the earlier order of the trial
Court, which was confirmed by this Court, would only result in his
being set ex parte and therefore, he should not be denied the right
to cross-examine the plaintiff on the affidavit filed by him for
passing judgment.
Opposing this plea, Sri P.Surya Narayana Murthy, learned
counsel, would contend that once the defendant suffered an order
requiring him to make a pre-deposit as a condition precedent for
leave to defend the suit and he failed to do so, it is not open to him
to get over the same by indirect means. Learned counsel would
argue that allowing him to cross-examine the plaintiff would be
nothing short of permitting him to defend the suit.
At this stage, it may be noted that none of the judgments
cited by Smt.G.Jyothi Kiran, learned counsel, relate to Order 37
CPC. As already noted supra, all principles applicable in ordinary
suits cannot be extended mutatis mutandis to suits covered by
Order 37 CPC. Only to the extent Order 37 CPC does not provide
the procedure to be followed in summary suits, the regular
procedure applicable to ordinary suits may be adopted. Be it noted
that a defendant cannot claim leave to defend a summary suit as a
matter of right, as he would in an ordinary suit. He cannot
therefore draw a parallel with a defendant in an ordinary suit in all
respects. Further, failure on the part of a defendant in a summary
suit to enter appearance automatically entails the suit being
decreed in favour of the plaintiff, as provided in Order 37 Rule 2(3)
CPC. The question of setting such a defendant ex parte at that
stage does not arise at all. The judgments cited, relating to ordinary
suits and a situation therein involving an ex parte defendant,
would therefore not be of guidance while dealing with a suit under
Order 37 CPC.
In the light of the rival contentions, the core issue that falls
for consideration before this Court is whether a defendant in a
summary suit under Order 37 CPC can claim the right to
cross-examine the plaintiff, having failed to comply with the
condition precedent for grant of leave to defend the suit.
The argument of Smt.G.Jyothi Kiran, learned counsel,
proceeds on the assumption that leave to defend a summary suit
would not encompass the right of the defendant to cross-examine
the plaintiff. If not, failure on the part of the defendant in
complying with the earlier order passed by the trial Court, to the
effect that he should deposit Rs.40,00,000/- as a condition
precedent for grant of leave would automatically bar him from
claiming the right of such cross-examination.
The next question, therefore, is whether the right to
cross-examine the plaintiff in a summary suit would fall within the
ambit of the defendants leave to defend the suit in terms of Order
37 Rule 3(5) CPC.
Both issues already stand settled. In RAJ DUGGAL V/s.
RAMESH KUMAR BANSAL , the Supreme Court was dealing with
the question whether leave to defend should be granted to the
defendant in a suit filed under Order 37 CPC and observed thus:
3. Leave is declined where the court is of the opinion that
the grant of leave would merely enable the defendant to
prolong the litigation by raising untenable and frivolous
defences. The test is to see whether the defence raises a real
issue and not a sham one, in the sense that if the facts
alleged by the defendant are established there would be a
good or even a plausible defence on those facts. If the court is
satisfied about that leave must be given. If there is a triable
issue in the sense that there is a fair dispute to be tried as to
the meaning of a document on which the claim is based or
uncertainty as to the amount actually due or where the
alleged facts are of such a nature as to entitle the defendant
to interrogate the plaintiff or to cross-examine his witnesses
leave should not be denied. .. (emphasis is mine)
This observation was reiterated and affirmed by the Supreme
Court in VINODAN T. V/s. UNIVERSITY OF CALICUT .
It is manifest from the aforestated observation of the
Supreme Court that where the facts in a summary suit are of such
a nature as to entitle the defendant to interrogate the plaintiff or
to cross-examine his witnesses, leave should not be denied. In
effect, the right of the defendant to interrogate/cross-examine the
plaintiff or his witnesses flows from the leave to defend granted to
him under Order 37 Rule 3(5) CPC and not independently.
In consequence, it is not open to the defendant to now claim
that his right to cross-examine the plaintiff would not be part and
parcel of his leave to defend the suit. As such a right cannot be
claimed automatically by the defendant and leave to defend was, in
fact, granted to him subject to the condition of a pre-deposit, it is
not open to the defendant to get over the same and indirectly try to
defend the suit by asking for permission to cross-examine the
plaintiff.
The trial Court therefore erred in drawing a parallel from a
principle that would apply in an ordinary suit and deciding the I.A.
in favour of the defendant. Unless and until the petitioner/
defendant complies with the conditional order, whereby he was
granted leave to defend the suit in O.S.No.954 of 2015, it is not
open to him to seek to cross-examine either the plaintiff or any
witness examined on his behalf or advance arguments.
The order under revision is accordingly set aside and the civil
revision petition is allowed. Pending miscellaneous petitions, if
any, shall stand closed in the light of this final order. No order as
to costs.
____________________
SANJAY KUMAR,J
13th OCTOBER, 2017.
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