ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC" for short) against the judgment, order and decree dated 27.06.2024 by the 22ndAdditional Senior Civil Judge, Vadodara in Special Summary Suit No.7 of 2020. By the
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impugned decree, the appellant-defendant was directed to pay an amount of Rs.1,73,45,028/- to the respondent-plaintiff with interest at the rate of 6% per annum.
1.1 The aforesaid amount is the share of the respondent- defendant in the compensation received when the ancestral land of the appellant and respondent were acquired for public purpose. The ancestral land being survey No.302, admeasuring 2681 Sq.Mtrs and survey No.307 admeasuring 7284 Sq.Mtrs of village Samiyala, Taluka: Baroda. It was a case of the respondent-plaintiff that the total compensation towards acquired land was Rs.5,20,350,85/- and the appellant and respondent were amongst the holders of the ancestral land, the respondent-plaintiff claimed to receive 33.33% of the compensation, which comes to the amount claimed in the suit.
2. It appears that two cheques of Rs.1,45,028/- and Rs.1,72,00,000/- were issued by the appellant-defendant to respondent-plaintiff which were dishonoured on account of insufficiency of funds which is a subject matter of criminal proceedings under Section 138 of the Negotiable Instrument Act. The respondent-plaintiff for the recovery of the aforesaid amount, issued a demand notice and upon failure to such demand notice, a summary suit under Order 37 of the CPC was filed and in response to, summons issued for summary suit, appellant filed their appearance and leave to defend vide Exh.9 and by an order dated 04.02.2023, an unconditional leave to defend was granted with the direction to pay a cost of Rs.1,000/- to the respondent-plaintiff.
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3. Learned advocate appearing for the appellant has argued that once leave to defend is granted unconditionally, the only option for the Civil Court is to proceed on merits and decide the suit however, in the present case, despite leave to defend being granted, the Civil Court has once again proceeded under the provisions of Order 37 of the CPC and pronounced the judgment. It is argued that the pronouncement of judgment is a step after the summons for judgment for which, summon has to be issued in proforma to the defendant, which in the facts of the present case, is not done.
3.1 It is submitted that the purported application for summons for judgment Exh. 31A is a subsequently got up application as from the Rojkam, after Exh.31, which was for the purpose of placing on record certain relevant documents, the list of documents produced therewith have been successively numbered as Exh.32, 33 owards, which was done on the same day and therefore, as a cover for the application for summons for judgment, Exh.31A was introduced in between.
3.2 Learned advocate has argued to further emphasise on the unreliability of the exhibits, is the exhibit number given to the impugned judgment itself. The certified copy of the judgment placed on record of this Court, the impugned judgment is Exh.48, whereas the paper-book prepared by the Civil Court, Vadodara, the exhibit number of the very impugned judgment is Exh.52. Learned advocate has therefore, taken this Court to the Rojkam, wherein on
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21.09.2023, Exh.32 onwards have been given to various documents and the documents produced alongwith Exh.33 list, such documents have been given exhibit from Exh.35 to 46 and 48 and 49 being the exhibit to other mark 4/11 to 4/13. Therefore, it is argued that Exh.31A application under Order
37 Rule 3(6) appears to be introduced later on.
3.3 Learned advocate has submitted that there was no cause of action to invoke Order 37 Rule 3(6) of the CPC as there was no non-compliance of any directions. The cost of Rs.1,000/- cannot be treated to be directions contained in Order 37 Rule 3(6), particularly, for recovery of cost, there is specific provision of Order 20A of the CPC.
4. Learned advocate appearing for the respondent-original plaintiff submitted that the appellant every now and then is resorting to a delay tactic which he has adopted in the present case as well by not remaining present before the trial Court and thereafter, seeking to get the benefit of his absence. It is submitted that similar modus was adopted by the appellant in the proceedings against him under Section 138 of the Negotiable Instrument Act, where deliberately he did not remain present, as a result of which he was convicted in the trial, but thereafter, again on the ground of his absence before the trial Court, deliberately appellant did not remain present and did not appear for cross-examining the respondent-plaintiff and when his right to cross-examination was closed and the 5thAdditional Judicial Magistrate First Class, Vadodara had convicted the appellant ordering imprisonment and compensation, the appellant had preferred
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appeal before the Sessions Court and on the ground of absence of the appellant, the matter was remanded at the stage of cross-examination and thereafter, again an application was filed for examining a witness and reopen the stage of evidence which was rejected, again a revision application came to be filed and notice has been issued to the other side.
4.1 In the meantime, the judgment was pronounced by the 20thAdditional Chief Judicial Magistrate acquitting the respondent and against which the respondent-plaintiff has filed Criminal Misc. Application No.4440 of 2025 in Criminal Appeal (F) No.8562 of 2025 seeking leave to appeal which has been granted and is now pending before the Court. Therefore, such dilatory tactics to avoid his liability may not be accepted by the Court.
4.2. On merit, learned advocate has attempted to submit that the case of the respondent-plaintiff is very clear as there is no dispute about the entitlement of share in the compensation received towards the acquisition of the ancestral properties. The only case of the appellant is that between the family it is settled and an amount of Rs.50 Lakhs has been paid to the respondent-plaintiff towards her share in compensation and therefore, she cannot now agitate and demand money towards her share as she has already received. However, it is argued that receipt of Rs.50 Lakh, if at all is under an agreement, which is also on record and it pertains to separate parcels of ancestral land which were also transacted independently and not part of the acquisition proceedings. Therefore, attempt on
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the part of the appellant to club the payment of Rs.50 Lakh with the claim of the respondent-plaintiff in the compensation awarded is an attempt to confuse and deprive the respondent- plaintiff of his legitimate rights.
5. The Court has heard learned advocates for the parties and perused the documents placed on record. At the initial stage, this Court has recorded reasons in order dated 19.11.2024 while issuing notice for final disposal and also order dated 02.04.2025, where the Court has called for the records and proceedings with the paper-book and Rojkam to enable the Court to finally dispose of the matter. In view of the aforesaid, with the consent of learned advocates for both the sides, the matter is taken up for final disposal.
6. Special Summary Suit No.7 of 2020 was filed with the prayer as under:-
"1. The Honorable Court may be pleased to pass an order in favour of we the plaintiff to recover the suit amount of Rs. 1,73,45,028/- (One Crore Seventy Three Lakhs Forty Five Thousand and Twenty Eight rupees only) along with 18% interest from the date of suit from the Defendant, recoverable from the Defendant and from all of his properties.
2. The Honorable Court may be pleased to pass an order in favour of we the Plaintiff, granting us any other relief that is provided in law.
3. The Honorable Court may be pleased to pass an order to recover the cost of this suit from the Defendant."
6.1 The cause of action being, land admeasuring 0-26-81 hectare from survey no. 302 and 0-72-84 hectare from survey
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no. 307, from the ancestral land of the respondent-plaintiff and the appellant-defendant, had been acquisitioned for Mumbai Vadodara Expressway. They were entitled to get compensation of Rs. 5,20,35084/-. Out of which share of respondent-plaintiff as per 33.33% was Rs. 1,73,45,028/- and the whole compensation amount was credited in the account of appellant-defendant with consent of the respondent- plaintiff. Hence, the appellant-defendant issued cheque no. 810804 of Rs. 1,45,028/- and cheque no. 810810 of Rs. 1,72,00,000/- to pay the share of the repondent-plaintiff. When the respondent-plaintiff deposited these cheques in his account, they were returned due to insufficient funds. Hence, the respondent-plaintiff issued a demand notice to appellant- defendant on 04.10.2018. Thereafter, as the amount was not paid, case no. 38937of 2018 was filed in the Court of JMFC. Therein, the Court passed an order of punishment and to pay the cheque amount as compensation. But as the appellant- defendant had not paid compensation amount, a demand was made for payment by issuing notice on 18.09.20120. However, even after that, as the appellant-defendant did not pay the amount, the present suit is filed in accordance with order 37 of CPC.
7. The suit being a Summary Suit, it appears that leave to defend was filed vide Exh.9, which came to be disposed of by a detailed order dated 04.02.2023 allowing application Exh.9 and granting unconditional leave to defend and imposing cost of Rs.1,000/- to the respondent-plaintiff. While granting leave to defend, 6thAdditional Senior Civil Judge categorically arrived at a conclusion that there exists a triable issue by
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holding that as per the suit of the respondent-plaintiff, the appellant-defendant issued two cheques dtd. 07.09.2018 and 05.09.2018 and as per those cheques an amount of Rs. 1,73,45,028/- was to be paid which was not received as the cheques were returned. The defence of the appellant- defendant against it is that the respondent-plaintiff had relinquished his right in block no. 302, 307 after obtaining other properties. It was also stated in defence that the appellant-defendant had paid him Rs. 50,00,000/- . In response to this, it is argued on behalf of the respondent- plaintiff that, this Rs. 50,00,000/- were not paid for the land given in the acquisition and the cheque was issued after the respondent-plaintiff had relinquished his right from the land i.e. not for the compensation of the acquisition of block no. 302 and 307 as per the suit. But, the appellant-defendant has paid Rs. 50,00,000/- for relinquishing the right in another land.
7.1 Thus, if the contentions of the parties are perused, it is found on record that the appellant-defendant paid Rs.50 Lakh to the respondent-plaintiff. But there is a dispute between the parties as to what was this payment made for and therefore, the said matter can be decided on the basis of evidences i.e. there is a triable issue in this suit. The respondent-plaintiff has also filed a case against the appellant-defendant under Negotiable Instrument Act. Therefore, it is appropriate and just to provide the appellant-defendant an opportunity for defend in this case.
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8. It appears that an application Exh.31 was given on 11.08.2023, wherein permission was sought to place on record original documents, which are important to the case and on 11.08.2023, the same was fixed for hearing. On the same day i.e. 11.08.2023, Exh.32 being an affidavit of the plaintiff with various documents was filed and order on 21.09.2023 was passed giving Exh.33 onwards to the documents which were referred to in affidavit Exh.32 and placed alongwith the list of documents Exh.33 also dated 11.08.2023. Exh.34 is an application again dated 11.08.2023 requesting for giving exhibit numbers to those list of documents, which are contained in the list Exh.33.
8.1 It is in midst of these documents curiously Exh.31A appears purportedly to be an application under Order 37 Rule 3(6) of the CPC which is also dated 11.08.2023 and which is ordered to fix for hearing. The perusal of the Rojkam dated 11.08.2023 refers to two exhibits being Exh.31 and Exh.31A and Rojkam recorded on 21.09.2023 which refers to documents Exh.32 owards till Exh.51, Exh.51 being the closing purshis. On 21.09.2023, it is recorded that the matter is placed for final orders. Therefore, there are no documents which are exhibited and therefore, Exh.52 dated 27.06.2024 is the impugned order however, the certified copy produced with the present appeal gives Exh.48 to the impugned judgment and order. This is a clear indication of something amiss in giving exhibit nos in the rojkam in due course.
9. The Court having perused the paper-book produced alongwith certificate of the Registrar of Civil Court, Vadodara
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dated 18.04.2025, the Court finds that Exh.48 is given to two documents being mark 4/11 to 4/13 dated 21.09.2023 and the documents alongwith list Exh.33 were given the exhibits from Exh.35 to Exh.46 and Exh.47 as recorded in the Rojkam being the hearing of learned advocate for the plaintiff, whereas in the paper book Exh.47 is a copy of the judgment, rendered in Criminal Case No.38937 of 2018 by the 5thAdditional Civil Judge and Judicial Magistrate First Class at Vadodara. The aforesaid fact noticed by the Court indicates that the recording of the Rojkam and the exhibit numbers given to the documents exhibited is at variance.
9.1 This aspect gains an importance when in the sequence of exhibit given, one Exh.31A appears to be introduced at later stage. Ordinarily, Exh. 32 would follow Exh.31, which appears to be done in the present case considering the fact that both Exh.31 and 32 are dated the same being 11.08.2023, but Exh.32 was assigned at a later date i.e. on 21.09.2023 and therefore, there is no cogent explanation as to why Exh.31A which is also dated 11.08.2023 was not given a continuing Exh.32, but instead has been given Exh.31A and hence, the only conclusion that the Court can draw is that Exh.31A has been subsequently introduced to Exh.32, which was assigned the exhibit number on 21.09.2023 and therefore, on 11.08.2023, Exh.31A was not on record.
10. The present impugned judgment and order entirely proceeds on the application Exh.31A and when such an application being on record is put to doubt by the Court, anything done pursuant thereto needs to be interfered with.
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11. Another reason for interfering is the fact that by a reasoned order dated 04.02.2023, the very Court having arrived at a conclusion that there being a triable issue has granted unconditional leave to defend. Once the unconditional leave to defend is granted, the Civil Court is expected to proceed further as a long cause suit giving an opportunity to both the sides for placing on record their respective evidence.
12. As is contended by the appellant which has remained uncontroverted that after leave to defend being granted, on 30.05.2023 the appellant had served notice to his advocate for remaining absent in his proceedings and has therefore, removed his advocate by serving him notice and on 11.07.2023 made an application to the Court being purshish at Annexure-'D' with the appeal stating that he has removed his previous advocate and declaring it by way of a purshish dated 11.07.2023, which is recorded by the Court and the certified copy is placed at Annexure-D. Though, the purshish has been recorded by the Court, the appellant was not permitted to engage another advocate in his place and instead proceeded to pass the impugned judgment, thereby depriving of the appellant from proper representation.
13. Further, the tenor of the impugned order by which the suit is decreed to the tune of Rs.1,73,45,028/-, the Court has not discussed any merits of the entitlement, but has only quoted the provisions of Order 37 of the CPC and therefore, the impugned judgment and order is definitely in exercise of Order 37 of the CPC. Therefore and in effect, the Court once granting unconditional leave to defend, having crossed the
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threshold of proceedings of Order 37 of the CPC, has once again fallen back on the proceedings under Order 37 of the CPC and as if is in exercise of provision under Order 37 Rule 3(4) and Order 37 Rule 3(6)(a) of the CPC. Therefore, the impugned judgment and order appears to be in exercise of Order 37 Rule 3(6) of the CPC as if defendant has not applied for leave to defend and if such an application for leave to defend has been filed, the same is refused and plaintiff became entitled to the judgment forthwith. This procedure could not have been adopted once unconditional leave to defend has been granted.
14. The Court may examine it from another angle also, where the pronouncement of the judgment and order being in exercise of the Order 37 Rule 3(6)(b) of the CPC, which provides for the category in which the plaintiff becomes entitle for the judgment forthwith, where the defendant is permitted to defend whole or part of the claim on the condition of the Court directing him to give such security within such time as may be fixed by the Court and upon failure to give such security within time specified by the Court or to carry out such directions as may have been given by the Court, then failure thereto would entitle the plaintiff to the judgment forthwith. There is no dispute that the order granting leave to defend is unconditional and therefore, there were no directions which were required to be followed by the appellant-defendant towards giving of a security within time specified.
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14.1. Therefore, the order below Exh.9, particularly, the operative part, which provides for awarding cost of Rs.1,000/- appears to be the cause of action for the respondent-plaintiff to file an application Exh.31A and in this application, it is averred that the defendant has not complied with the order below Exh.9. Therefore, as there is no other condition while granting leave to defend what the Civil Court has believed, the non-payment of the cost to be the directions which is not complied with by the appellant, thereby entitling the respondent-plaintiff to decree the judgment forthwith. The question therefore, for the consideration of the Court is whether the directions awarding cost of Rs.1,000/- be treated as "other directions " as referred to in Order 37 Rule 3(6)(b).
15. Firstly, the operative part of the order dated 04.02.2023 below Exh.9 does not provide for any time specified within which the cost of Rs.1,000/- is to be paid by the appellant- defendant to respondent-plaintiff and in that view of the matter, there is no cause of action which has arisen on the ground of non-compliance of payment of cost of Rs.1,000/-.
16. Secondly, When the provision Order 37 Rule 3(6)(b) of the CPC refers to a situation, where a defendant is permitted to defend whole or any part of the claim under the summary proceedings, it is for the Court to direct him to give such security within a time specified by the Court and upon failure to give such security within the time specified by the Court, that the plaintiff is said to be entitled to the judgment forthwith. The language of Clause (b) also includes alongwith failure to give security within the time specified, a clause "to
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carry out such other directions" has to be read conjunctively and in consonance with the purpose of Sub-Clause 3(6)(b) and therefore, "other directions " mentioned in this clause has to be with regard to the directions being the condition imposed upon the defendant while granting him leave to defend. Imposing of cost is for the purpose which is specifically provided for Order 20A and the purpose of imposing of cost as provided in Order 20A is also specified therein, which largely pertains to the expenditure that is incurred by the party to the litigation, but certainly does not refer to the directions, which are given for the purpose of securing the claim of the plaintiff while the defendant is given the permission to defend his case in a long cause suit.
16.1. Moreover, wherever there is non-compliance of an order with regard to payment of cost imposed by the Court, there is a different line of action and the party claiming the cost has to fall back on a completely different mechanism for recovery of such cost and therefore, non-payment of the cost imposed in an application for leave to defend would not fall in the category of "such other directions" appearing in Order 37 Rule 3(6)(b).
17. One more ground that on which the Court may interfere with regard to application Exh.31A, in the opinion of the Court, application Exh.31A purportedly under Order 37 Rule 3, a notice in a specified format is required to be issued. Form 4A of Appendix B of the Civil Procedure Code is a format in which a summon for judgment in a summary suit under Order
37 Rule 3 is required to be issued. According to learned
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advocate for the respondent-plaintiff, on 11.08.2023 28th Additional Senior Civil Judge and ACJM, Vadodara had issued such notice which is placed in the paper book stipulated by the respondent-plaintiff at page 21. The Court has perused such a document which appears to be a notice to show-cause in general format, the form which is prescribed in Appendix-II at No.4, which in the opinion of the Court, is a different form than what is provided for in Appendix-B Form No.4A, which is specifically for Order 37 Rule 3. Therefore, such a notice which is on page 21 appears to be a notice issued pursuant to the application Exh.31 which was also fixed for hearing on the same day and therefore, the notice to show-cause (general form) at page 21 in the form No. Appendix-II at No.4 cannot be treated to be notice as provided for under Order 37 Rule 3 and therefore, in fact, the proceedings on the basis of Exh.31A are without the statutory notice provided for in the Civil Procedure Code and hence, also requires to be interfered with.
18. In view of the aforesaid reasonings, the Court is of the view that the procedure adopted by the Civil Court in proceeding to pronounce a judgment after grant of unconditional leave to defend by falling back on the provision of Order 37 is erroneous in law and is therefore, required to be quashed and set aside.
19. The Court is a conscious of a position that as the long cause suit which was to proceed on merits has been short- circuited and has brought to an end by the impugned judgment and order by resorting to the provision of Order 37
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after having crossed the threshold of Order 37, the quashing of the impugned Judgment and order would amount to non- suiting the respondent-plaintiff and therefore, the plaintiff may also be deprived of establishing his claim, On merits, by following the procedure for conducting long cause suit and therefore, the Court deems it fit to remand the matter back by quashing the impugned judgment and order from the stage of Exh.46, as per Rojkam and Exh.50 as per paper book onwards.
20. With the aforesaid reasonings, the appeal stands allowed. The impugned judgment, order and decree dated 27.06.2024 by the 22ndAdditional Senior Civil Judge, Vadodara in Special Summary Suit No.7 of 2020 is hereby quashed and set aside. The proceedings are therefore remanded back to the Civil Court Vadodara.
21. In view of the disposal of the first appeal, no orders are required to be passed in the Civil Application and hence,
disposed of accordingly.
(A.Y. KOGJE, J)
(J. L. ODEDRA, J)
SIDDHARTH
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