1. This is a revision petition filed by the defendant against order dated 27-1-1978 passed by the Fourth A. D. J. Gwalior in Civil Suit No. 26-B of 1977 whereby amendment of the plaint, by deleting reference to Order 37, C. P. C. and addition of words in cause of action clause to the effect that the suit is also "based on original transaction of loan, has been permitted.
2. The facts as alleged are as follows: The plaintiff-non-applicant has instituted a suit on 18-11-1977 for recovery of loan of Rs. 10,000/- and Rs. 1,000/- by way of interest. The suit is based on original transaction of giving and taking of the loan of 28th June, 1976. It is also alleged in the plaint that the Hundi was executed by the defendant in favour of the plaintiff in order to supply evidence of the aforesaid transaction of loan on 28th June, 1976. There is also an averment in the plaint that the suit is brought under Order 37 in summary procedure. On 12-1-1978 an amendment application was submitted by the plaintiff-non-applicant seeking leave to amend the plaint by deletion of reference to Order 37 and addition in cause of action clause of the words that the suit is also based on original transaction of loan.
3. This application was opposed by the defendant-applicant but has been allowed by the impugned order. Hence this revision.
4. The contention of the learned counsel for the defendant-applicant in this revision is that by the impugned amendment summary suit is converted into an ordinary suit and that the amendment in cause of action clause was not necessary.
5. The learned counsel for the plaintiff-non-applicant supported the impugned order and argued that the court had power to allow the amendment in question.
6. After having heard the learned counsel for both the parties. I am of the, opinion, that the revision deserves to be dismissed.
7. A plaintiff may institute suit specified in Sub-rule (2) of Rule 1 of Order 37 at (his option either as a summary suit or as a suit in the ordinary manner. Sub-rule (2) of the Rule 1 of Order 37 specifies the following classes of suits which can be filed as summary suits :--
"(a) suits upon bills of exchange, hundies and promissory notes;
(b) suits in which the plaintiff seeks only to recover a debt, or liquidated demand in money payable by the defendant, with or without interest, arising.
(i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only."
8. A suit not falling within the afore-said classes of suits cannot be instituted as a summary suit and tried in summary procedure. As stated earlier, the present suit is based initially on the original cause of action i. e. the transaction of giving and taking of the loan on 28-6-1976. It is also stated in the plaint that by way of evidence of the transaction of loan, Hundi was executed by the defendant in favour of the plaintiff. The plaintiff appears to have so framed the suit apprehending that in s claim may not fall on account of the Hundi in question being on insufficient stamp. A suit like the present one cannot be regarded to fall within the classes of suits triable in summary procedure. The applicability of procedure for trial of the suit depends upon class of suit and not on option of the party. The plaintiff cannot ask a suit not falling under Order 37, Rule 2 (1) to be tried as a summary suit. This is exactly the position in the present case. Therefore, even if the plaintiff would not have applied for deletion of reference to Order 37 from the plaint, the trial court had no jurisdiction to try it as a summary suit i. e. in summary procedure prescribed by Order 37. In this view of the matter, deletion of reference to Order 37 is perfectly justified.
9. A suit falling in classes of suits Specified by Order 37, Rule 2 (1), Civil P. a can be filed at the option of the plaintiff either as a summary suit or as a suit in the ordinary manner. Having filed the suit once as a summary suit, there is no prohibition in the Civil P. C. to the effect that the plaintiff will not be allowed to give up the benefit of the procedure under Order 37 and request for trial of the suit in the ordinary manner. The option which the plaintiff has in the matter does not get exhausted by its initial exercise. The plaintiff can later on request for the suit being tried in ordinary manner. At the best, on such a change of option, the plaintiff may be saddled with costs if any, occasioned upto that point of time but the defendant cannot compel the plaintiff to get the suit tried as a summary suit only.
10. The trial Court had power to grant leave to amend and has exercised that power. Order 6, Rule 17 applied to the case and its extension to Order 37 has nowhere been prohibited. If the plaintiff has choice of taking advantage of summary procedure under Order 37, he has also the liberty of not claiming the benefit of that procedure.
11. An analysis of Order 37 reveals that in Rules 2 to 6 certain restrictions are imposed on right of the defendant to defend. Rule 7 of Order 37 provides that save as provided by this Order (Order 37) the procedure in suits hereunder shall be the same as procedure in suits instituted in the ordinary manner. Therefore, what happens by deletion of reference to Order 37 from the plaint is that the right of the defendant to defend the suit becomes unfettered. The restrictions on his right to defend imposed 'by the various rules of Order 37 also disappear. Therefore, the defendant cannot have any grievance if the plaintiff seeks deletion of the reference of Order 37 from the plaint.
12. There is no question of taking away of any right vested, in the defendant by lapse of time. The amendment sought is within three years of the institution of the suit. Formerly, under Article 5 of Schedule I of the Indian Limitation Act of 1908, a summary suit had to be brought within one year from the date on which the debt becomes due but now there is no such period of limitation for such suits under the Indian Limitation Act, 1963. A suit falling in classes of suits under Order 37, Rule 2 (1) may be instituted either as a summary suit or a suit in the ordinary manner within the same period of limitation i. e. three years.
Thus there can be no prejudice to a defendant if a plaintiff is granted leave to make the amendment in question.
13. As to the other portion of the amendment viz., adding words in the cause of action clause to show that the suit is also an original transaction of loan, such an amendment is only by way of abundant caution and with an objective to clarify the fact that the suit is based on original cause of action. No valid objection can be sustained to such an amendment being permitted.
14. In this view of the matter, the revision is dismissed without order as to costs;
Comments