# Sam Higginbottom Institute of Agriculture Technology & Sciences Revisionist v. M/S Acurite Contractors & Engineers

- **Citation:** (2016) 7 ILRA 280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-11
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sam-higginbottom-institute-of-agriculture-technology-sciences-revisionist-v-m-s-44041
- **Pages:** 21

## Text

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280 INDIAN LAW REPORTS ALLAHABAD SERIES

concept of profit or loss in such determination. Amount paid by allottees represents lease rent etc.
and hence assumption of 5% income on such premium is without any basis.

13. Similarly for interest received by Assessee on delayed payment of installment of
premium or lease rent etc, Tribunal has held that it is not income of eligible business for the
purpose of computation of deduction under Section 80IA. We find that Tribunal has completely
erred in law inasmuch as a finding of fact was recorded by CIT in para 10.3.5 that interest earned
by Assessee on installments granted in respect of premium payable, and other income etc. receipts
may have some link with the business of appellant and having said so, still it has reversed order of
Assessing Authority to the extent, it has allowed deduction under Section 80IA on such 'interest'
and Tribunal has erred in law in failing to appreciate this finding of Commissioner of Income Tax (
Appeals) and without reversing the same, has dismissed Assessee's appeal.

14. In view thereof the questions formulated above are answered by observing that
Assessee was entitled for deduction towards payment of group gratuity insurance paid to LIC by
treating fund as any approved fund. 5% of premium collected by Assessee and forfeiture of earnest
money/premium has been added illegally based on conjuncture and surmises. Since the nature of
functioning of Assessee has not been examined looking to the public nature of its functioning for
development of industries in the State, such addition, therefore, is not justified in law.

15. With regard to applicability of Section 80IA, without reversing findings of
CIT(Appeals), that such interest received may have some link with the business of appellant and
once that is so, to hold that deduction under Section 80IA is not admissible is per se contradictory
and hence is not correct and in accordance with Law.

16. On the aforesaid aspects, impugned judgment of Tribunal dated 24.7.2014 is hereby set
aside and the matter is remanded back. Appeal is partly allowed. Tribunal shall pass a fresh order
on the aforesaid aspects in the light of law, discussed above.
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REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2016

BEFORE

THE HON'BLE MANOJ MISRA, J.

Civil Revision No.- 14 Of 2015

Sam Higginbottom Institute of Agriculture Technology & Sciences ...Revisionist
Versus
M/S Acurite Contractors & Engineers ...Opposite Parties

Counsel for Revisionist:
Sri Amit Negi, Sri Ravi Kant (Sr. Counsel), Sri J. Nagar (Sr. Counsel), Sri Tarun Agrawal
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Counsel for Opposite Parties:
Sri Rajesh Kumar Singh

Civil Procedure -- Order XXXVII Rule 3(6)(b) C.P.C. -- Summary Suit -- Conditional Leave to
Defend -- Non-Compliance of Condition -- Right to Cross-Examine -- Defendant in a summary suit
filed under Order XXXVII C.P.C. was granted conditional leave to defend on deposit of 50% of claimed
amount and furnishing security for balance -- condition not fulfilled even within extended time granted by the
Supreme Court -- defendant moved application seeking permission to cross-examine plaintiff's witness and
address the court on legal points which was rejected by the trial court -- Held: in a summary suit under Order
XXXVII C.P.C. where leave to defend is refused or is not applied for, or where the condition imposed for leave
to defend is not fulfilled, the plaintiff becomes entitled to judgment forthwith under sub-rule (6) of Rule 3 of
Order XXXVII -- consequently, the defendant has no right to cross-examine the plaintiff's witness in such a
situation -- the words 'entitled to judgment forthwith' in sub-rule (6) of Rule 3 of Order XXXVII are not to be
equated with 'entitled to a decree' in sub-rule (3) of Rule 2 -- the non-use of the word 'decree' does not dilute
the entitlement of the plaintiff to obtain a decree in the given situation. (Paras 21-26)

Civil Procedure -- Order XXXVII C.P.C. -- Summary Suit -- Defendant's Right to Address Court on
Legal Points -- Held: even where the defendant in a summary suit has no right to cross-examine the
plaintiff's witness on non-fulfillment of condition of leave to defend, the defendant retains the right to address
the court on legal points -- the court, while pronouncing judgment forthwith, is not absolved from its
obligation to examine whether the plaint makes out a case entitling the plaintiff to a decree -- the court must
be satisfied that the facts set out in the plaint, taken at their face value, justify the decree being granted --
consequently, the order of the court below rejecting the defendant's application in toto including the prayer to
address the court on legal points was modified -- court directed to hear the defendant on legal points before
pronouncing judgment. (Paras 27-31)

Civil Procedure -- Order XXXVII Rule 3(6) C.P.C. vs. Order XXXVII Rule 2(3) C.P.C. -- Distinction -
- Held: sub-rule (3) of Rule 2 of Order XXXVII contemplates a situation where the defendant fails to enter an
appearance despite service of summons and the allegations in the plaint shall be deemed admitted -- sub-rule
(6) of Rule 3 of Order XXXVII operates at a later stage where the defendant has already entered appearance
and has been served summons for judgment but has either failed to apply for leave, or whose leave has been
refused or whose condition for leave has not been fulfilled -- in the latter situation there is no deemed
admission and plaintiff is not entitled to a 'decree' as prayed for but only to 'judgment forthwith' which
judgment must still be sustainable on the evidence brought on record -- the two provisions operate at
different stages and on different facts. (Paras 23-24)

Civil Procedure -- Word 'Forthwith' -- Interpretation -- Summary Suit -- Held: the word 'forthwith' in
Order XXXVII Rule 3(6)(b) C.P.C. does not mean 'immediately' or 'instantly' on the same day -- it should be
understood as enabling and mandating the court to complete the proceeding with reasonable promptitude --
the court has discretion to fix a date to complete the proceeding in accordance with law -- it does not give
license to the plaintiff to straightaway obtain a decree on the plaint allegations without leading evidence to
prove the claim. (Paras 28-30)

Civil Revision Partly Allowed -- Impugned order dated 10.11.2014 passed by Civil Judge (Sr. Div.),
Allahabad rejecting the defendant's application No. 51 Ga for cross-examination and addressing court on legal
points upheld to the extent of disallowing cross-examination of plaintiff's witness -- however, defendant's right
to address the court on legal points preserved -- court below directed to hear defendant on legal points before
pronouncing judgment -- revision partly allowed. (Paras 31-32)

Case Law Discussed:
282 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Mannu and another v. Tulsi, 1922 (20) All LJ 39
2. Sangram Singh v. Election Tribunal, AIR 1955 SC 425
3. Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993
4. M/s. Paradise Industrial Corporation v. M/s. Kiln Plastic Products, 1976 (1) SCC 91
5. Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619
6. Balraj Taneja and another v. Sunil Madan and another, (1999) 8 SCC 396
7. Abdul Wadood v. 14th Additional District Judge, Kanpur Nagar and others, 2002 (2) ARC 296
8. Bidya Deb Barma v. District Magistrate, Tripura, AIR 1969 SC 323

(Delivered by Hon'ble Manoj Misra, J.)

1. This is defendant's revision against an order dated 10.11.2014 passed by Civil Judge (Sr.
Div.), Room No.14, Allahabad in Suit No. 1014 of 2012 (hereinafter referred to as the suit) by
which application no. 51 Ga moved by the defendant-revisionist, under Section 151 of the Code of
Civil Procedure, 1908 (hereinafter referred to as the Code), to allow the defendant to cross-examine
the plaintiff's witness and argue the matter on legal points, has been rejected by the court below.
The court below rejected the said application on the ground that the suit was a summary suit
wherein the leave to defend was granted on a condition which the defendant failed to fulfill
therefore the defendant was entitled to judgment forthwith, under Order XXXVII Rule 3 (6)(b) of
the Code, and as such the defendant had no right to cross-examine the plaintiff's witnesses or to
address the Court in defense.

2. The question that arise for adjudication in this case is that, whether in a summary suit,
under Order XXXVII of the Code, where the defendant has been granted leave to defend on a
condition and that condition has not been fulfilled, would the defendant still have a right to cross
examine the plaintiff's witness or not.

3. Briefly stated the facts of the case are that the plaintiff-respondent was awarded
construction works by the defendant/University. In respect of payment for the said works,
according to the plaintiff, a Memorandum of Understanding dated 19.12.2006 was entered into
between the plaintiff and the defendant wherein both parties agreed that the total value of the work
executed by the plaintiff was of Rs.26,32,72,391/- and it was agreed that after deducting the
payment already made to the plaintiff, the balance would be paid by the defendant to the plaintiff in
three installments. The suit, under Order XXXVII of the Code, was instituted against the
defendant-revisionist, claiming that after deducting the amount already paid by the defendantUniversity, as per Memorandum of Understanding dated 19.12.2006, the plaintiff was entitled to
receive a sum of Rs. 4,69,00,751/- besides interest at the rate of 12% per annum with effect from
29.08.2009. In the suit, the defendant-revisionist entered an appearance and upon service of the
summons for judgment, applied for leave to defend. The trial court, by its order dated 25.07.2013,
granted unconditional leave to defend subject to filing of written statement by 29.08.2013. Pursuant
to the order of the trial court, a written statement was filed. However, against the order dated
25.07.2013, the plaintiff filed Civil Revision No. 380 of 2013 before this Court. The said revision
was partly allowed by order dated 23.09.2014 thereby making the leave to defend conditional on:
(a) deposit of 50% of the total amount, as claimed by the plaintiff in the suit, in cash; and (b)
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furnishing adequate security for the remaining half to the satisfaction of the court below, within six
weeks from the date of the order passed by the revisional court. Against the order of this Court
dated 23.09.2014, the defendant filed a Special Leave Petition before the Apex Court. The Special
Leave Petition was dismissed by order dated 15.12.2014. However, the time for deposit of 50% of
the total amount by cash as well for furnishing security of the remaining half was extended by
another two weeks from the date of the order passed by the Apex Court. In the meantime, during
the pendency of Special Leave Petition before the Apex Court, on 10.11.2014, vide application no.
51 Ga, the defendant sought cross-examination of the plaintiff's witness as also liberty to address
the court on legal points, which was rejected by the impugned order by placing reliance on clause
(b) of sub rule (6) of Rule 3 of Order XXXVII of the Code. It is not in dispute that even within the
extended time granted by the Apex Court the condition imposed by this Court for granting leave to
defend was not fulfilled by the defendant.

4. I have heard Sri Ravi Kant and Sri J. Nagar, learned Senior Counsels, assisted by Sri
Amit Negi, for the revisionist; and Sri Rajesh Kumar Singh for the plaintiff-respondent.

5. Assailing the impugned order, on behalf of the defendant-revisionist it was submitted
that the Court below has wrongly interpreted the provisions of Order XXXVII Rule 6 (b) of the
Code by considering it to be at par with Order XXXVII Rule 2 (3). It was submitted that the
deeming provision of Order XXXVII Rule 2 (3) of the Code, which provides that on failure of the
defendant to enter an appearance the allegations in the plaint shall be deemed to be admitted and
the plaintiff shall be entitled to a decree, would come into play only when the defendant fails to
enter an appearance. But where the defendant had entered appearance, there would be no deemed
admission and therefore the plaintiff would have to prove his case by ordinary mode and in such a
case the evidence led on behalf of the plaintiff would have to be tested by cross examination
because otherwise the provision would be violative of the principles of natural justice and as such
ultra vires the Constitution of India. It was submitted that there is a marked difference in the
language of sub rule (3) of Rule 2 with that of sub rule (6) of Rule 3, inasmuch as in sub rule (3) of
Rule 2 it is provided that if the defendant fails to enter appearance the allegations in the plaint shall
be deemed to be admitted and the plaintiff shall be entitled to a decree whereas in sub rule (6) of
Rule 3 the words used are that the plaintiff shall be entitled to judgment forthwith. Meaning thereby
that where the defendant had entered appearance, even if the leave to defend is refused or where the
condition imposed by the Court for leave to defend is not fulfilled, the plaintiff's case is not deemed
admitted and therefore the plaintiff is not entitled to a decree, as prayed for, but is entitled to a
judgment which has to be sustainable on the evidence brought on record and no evidence can be
relied unless it is allowed to be tested by cross examination. It was submitted that Rule 7 of Order
XXXVII specifically provide that the procedure in summary suits shall be same as the procedure in
suits instituted in ordinary mode save to the extent provided by Order XXXVII of the Code which
implies that the plaintiff would have to prove his case as in an ordinary suit and the consequence of
refusal of leave would be nothing more than that that the suit would proceed without a defense as in
a case where the suit proceeds ex parte or where the defense has been struck off. It was submitted
that even where the suit proceeds ex parte against a defendant or where no written statement is filed
or where the defense has been struck off, under the provisions of the Code, the consistent view of
284 INDIAN LAW REPORTS ALLAHABAD SERIES

this Court as well as the Apex Court had been that the plaintiff would still have to prove his case
and the defendant would have a right to cross-examine the plaintiff's witness(es). In support of the
above plea reliance was placed on the following decisions:- (i) 1922 (20) All LJ 39 : Mannu and
another v. Tulsi; (ii) AIR 1955 SC 425 : Sangram Singh v. Election Tribunal; (iii) AIR 1964 SC
993 : Arjun Singh v. Mohindra Kumar and others; (v) AIR 1972 Patna 81 : Siai Sinha v.
Shivadhari Sinha and others; (vi) AIR 1982 Jammu and Kashmir 93 : Chuni Lal Chowdhary v.
Bank of Baroda and others; (vii) 1976 (1) SCC 91 : M/s. Paradise Industrial Corporation v. M/s.
Kiln Plastic Products; (viii) (1988) 4 SCC 619 : Modula India v. Kamakshya Singh Deo; and (ix)
2002 (2) ARC 296 : Abdul Wadood v. 14th Additional District Judge, Kanpur Nagar and others.

6. In addition to above, on behalf of the revisionist, it was submitted that the use of the
word forthwith in sub rule (6) of Rule 3 of Order XXXVII of the Code would not mean that the
Court in all situations has to decide the suit immediately, once the leave to defend is refused or the
condition imposed for securing leave is not fulfilled. It was submitted that the word forthwith is not
to be interpreted as "immediately" or "instantly". It should be understood as enabling as well as
mandating the Court to complete the proceeding with reasonable promptitude. It was argued that
where the Code enables a Court to pronounce judgment forthwith it would not mean that the
judgment is to be on the same day. The Court always has discretion to fix a date to complete the
proceeding in accordance with law. More so, it would not give license to the plaintiff not to
substantiate his case and straight away obtain a decree on the plaint allegations. In support of the
aforesaid submission, reliance was placed on the following decisions:- (i) AIR 1969 SC 323 :
Bidya Deb Barma v. District Magistrate, Tripura; (ii) 1993 Supp (3) SCC 754 : Naval
Shanker Ishwarlal Dave and another v. State of Gujarat and others; (iii) 1995 Supp (4) SCC
275 : Rao Mahmood Ahmad Khan v. Ranbir Singh and others; (iv) AIR 1966 Ald 615 :
Tripathi Sansnath v. Tripathi Bhagwat Nath and others; (v) AIR 1986 Ald 94 : Kuri lal
Rungta v. Smt. Banarsi Das and others. Relying on decision of the apex court in the case of
Balraj Taneja and Another v. Sunil Madan and another: (1999) 8 SCC 396, it was submitted
that even where the defendant has not filed a pleading though it is lawful for the Court to
pronounce judgment on the basis of facts contained in the plaint, as under Order VIII, Rule 5(2)
and Order VIII, Rule 10 of the Code, but the Court ought to be cautious and only on being satisfied
that there is no fact which needs to be proved should pass a judgment and where the plaint itself
indicates disputed questions of fact involved in the case regarding which two different versions are
set out in the plaint itself, the court must not pass judgment without requiring the plaintiff to prove
the facts so as to settle the factual controversy.

7. Per contra, the learned counsel for the plaintiff-respondent, defending the impugned
order, submitted that Order XXXVII is applicable only to certain classes of suit. The primary object
underlying summary procedure is to prevent unreasonable obstruction by the defendant who has no
defense thereby assisting and securing speedy and expeditious disposal of cases. Summary
procedure provided by the Code is aimed at providing certainty, security and continuity in business
transactions and is a step in ensuring early disposal of commercial cases. Therefore the provisions
of Order XXXVII are to be interpreted in such a manner which serves the object for which it exists
in the Code. It has been submitted that for certain classes of suits Order XXXVII is a complete
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code in itself. It not only lays down the manner in which a summary suit is to be instituted but also
prescribes a format in which summons of the suit are to be issued to the defendant and further
provides that the plaintiff shall, together with the summons, serve on the defendant a copy of the
plaint and annexures thereto. It not only fixes a time by which the defendant has to enter an
appearance upon service of summons but also provides for the consequences of non appearance.
Once the defendant enters appearance, the plaintiff is required to serve summons for judgment on
the defendant in the prescribed format duly supported by an affidavit verifying the cause of action
and the amount claimed and stating that in his belief there is no defense to the suit whereupon the
defendant is required to apply for leave to defend by disclosing such facts as may be deemed
sufficient, either on affidavit or otherwise, to entitle him to defend. Thereafter, the Court has to
apply its mind to the prayer seeking leave to defend and to pass appropriate order which may be:
(a) unconditional leave to defend; or (b) conditional leave to defend; or (c) refusal of leave to
defend. Provided that leave to defend is not to be refused unless the Court is satisfied that the facts
disclosed by the defendant do not indicate that he has a substantial defense to raise or that the
defense intended to be put up by the defendant is frivolous or vexatious. It was submitted that the
object of granting conditional leave to defend is to wipe out frivolous and baseless pleas so that the
object to provide summary procedure is not frustrated. It was submitted that the difference in the
procedure of an ordinary suit and a summary suit is that in the former the defendant requires no
leave of the Court to defend the suit and he is entitled to defend it as of right whereas in the latter
the defendant is required to apply for leave to defend within ten days of service of the summons for
judgment. It was submitted that in a summary suit the defendant has no right to defend unless leave
is granted to him by the Court to defend. Therefore, where the defendant fails to obtain leave to
defend or where the leave to defend has been granted conditionally and the defendant fails to fulfill
the condition, the decree is almost automatic because it would be deemed that the defendant has no
defense to offer. It was submitted that the authorities relied upon by the defendant-revisionist are in
the context of an ordinary suit and would have no application to suits instituted under Order
XXXVII. It was submitted that the use of words "entitled to judgment forthwith" as they occur in
sub-rule (6) of Rule 3 of Order XXXVII are to be interpreted in the context of sub-rules (4) and (5)
of Rule 3 of Order XXXVII which provides that when the defendant enters an appearance, the
plaintiff would serve on the defendant a summons for judgment in Form No. 4A, supported by an
affidavit verifying the cause of action and the amount claimed with a statement that in his belief
there is no defense to the suit. It was submitted that summons for judgment in a summary suit is to
be in Form No. 4 A, which puts the defendant on notice to attend the Court on a particular date on
the hearing of an application of the plaintiff to obtain judgment in the suit against him for a
specified sum of money and for interest and cost. Meaning thereby that where leave to defend,
upon service of summons for judgment is refused or leave granted is conditional and the condition
has not been fulfilled, then the plaintiff is entitled to judgment forthwith as contemplated in the
summons for judgment served on the defendant. It was submitted that the words "judgment
forthwith" is therefore to be understood in that context and they should not be interpreted so as to
mean that the plaintiff's case has to be considered and determined as in an ordinary suit proceeding
ex parte. It has been submitted on behalf of the plaintiff that since a special procedure has been
provided by the Code for deciding a summary suit where the defendant either fails to enter
appearance or fails to obtain leave to defend or fails to fulfill the condition, in a case where the
286 INDIAN LAW REPORTS ALLAHABAD SERIES

leave to defend has been granted conditionally, the general provisions of the Code of Civil
Procedure which are, otherwise, applicable would be deemed excluded notwithstanding Rule 7 of
Order XXXVII of the Code. It was submitted that since admittedly the leave to defend was granted
conditionally and the condition was not fulfilled, the plaintiff was entitled to judgment forthwith as
contemplated in the summons for judgment and the application of the defendant to cross-examine
the plaintiff's witness is nothing but misconceived inasmuch as the defendant would be deemed to
have admitted plaintiff's case.

8. I have given thoughtful consideration to the submissions of the learned counsel for the
parties and perused the record.

9. Before proceeding to consider the rival submissions, it would be apposite to refer to the
object which the provisions of Order XXXVII seek to achieve. The principle object for providing
summary procedure in certain classes of suits was to prevent unreasonable obstruction by a
defendant who had no real defense thereby assisting and securing speedy and expeditious disposal
of cases. The procedure prescribed in Order XXXVII of the Code is a step in ensuring early
disposal of commercial cases such as suits based on negotiable instruments or suits where the
plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with
or without interest, arising on a written contract; or 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 on a guarantee,
where the claim against the principal is in respect of a debt or liquidated demand only. The
fundamental difference in the procedure of an ordinary suit with that of a summary suit is that in an
ordinary suit the defendant has inherent right to defend for which no leave is required whereas in a
summary suit, the defendant has to enter an appearance within a specified period upon service of
summons in a prescribed form and thereafter upon service of summons for judgment, which again
is in a prescribed form, has to seek from the Court or the Judge leave to defend. A challenge was
laid to the constitutionality of Order XXXVII on the ground that it violated the principles of natural
justice and was arbitrary as well as discriminatory. The Calcutta High Court while upholding its
validity in the case of Ambalal Purusottamdas And Co. vs Jawarlal Purusottam Dave And Ors
: AIR 1953 Calcutta 758 observed that Order XXXVII is based on a reasonable and justifiable
classification; and that the procedure under Order XXXVII is neither against the principles of
natural justice nor it is unreasonable within any constitutional prohibition.

10. To better understand the import of the provisions of Rules 1, 2 and 3 of Order XXXVII
of the Code, it would be useful to examine the provisions as they existed prior to the amendment
brought about by Act No.104 of 1976. Rules 1, 2 and 3 of Order XXXVII of the Code, as they
existed prior to the amendment brought by Act No.104 of 1976, read as under:-

" Rule 1-This order shall apply only to -

(a) the High Court of Judicature of Fort William, Madras and Bombay;
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(b) any District Court or other Court specially empowers in this behalf by the State
Government;

(c) (* * *) and

(d) any other court to which Sections 532 to 537 of the Code of Civil Procedure,
1882, have been already applied;

and (e) any court in the province of Agra exercising the powers of a summary case
(inserted by High Court, Allahabad)

Rule 2- Institution of summary suits upon bills of exchange etc.-

(1) All suits upon bills of exchange, hundies or promissory notes may, in case the
plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed,
but the summons shall be in Form No. 4 in Appendix B or in such other Form as may, from time to
time, be prescribed.

(2) In any case in which the plaint and summons are in such forms, respectively, the
defendant shall not appear or defend the suit, unless he obtains leave from a Judge as hereinafter
provided so to appear and defend; and, in default of his obtaining such leave or of his appearance
and defense in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and
the plaintiff shall be entitled to a decree---

(a) for the principal sum on the instrument and for interest calculated in accordance
with provisions of section 79 or section 80, as the case may be, of the Negotiable Instruments Act,
1881, up to the date of the institution of the suit, or for the sum mentioned in the summons,
whichever is less, and for interest up to the date of the decree at the same rate or at such other rate
as the Court thinks fit; and

(b) for such subsequent interest, if any, as the court may order under Section 34 of
this Code; and

(c) for such sum for costs as may be prescribed:

Provided that, if the plaintiff claims more than such fixed sum for costs, the cost
shall be ascertained in the ordinary way.

(3) A decree passed under this rule may be executed forthwith.

Rule 3-- Defendant showing defence on merits to have leave to appear
288 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) The court shall, upon application by the defendant, give leave to appear and to
defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder
to prove consideration, or such other facts as the Court may deem sufficient to support the
application.

(2) Leave to defend may be given unconditionally or subject to such terms as to
payment into Court, giving security, framing and recording issues or otherwise as the Court thinks
fit."

11. By Amending Act No.104 of 1976, with effect from 01.02.1977, Rules 1, 2 and 3 of
Order XXXVII of the Code were substituted as under:-

Rule 1. Courts and classes of suits to which the Order is to apply.--(1) This Order
shall apply to the following Courts, namely:--

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) other Courts:

Provided that in respect of the Courts referred to in clause (b), the High Court may,
by notification in the Official Gazette restrict the operation of this Order only to such categories of
suits as it deems proper, and may also, from time to time, as the circumstances of the case may
require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the
categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1), the Order applies to the following
classes of suits, namely:--

(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.
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Rule 2. Institution of summary suits.--(1) A suit, to which this Order applies, may if
the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,-
-

(a) a specific averment to the effect that the suit is filed under this Order;

(b) that no relief, which does not fall within the ambit of this rule, has been claimed
in the plaint; and

(c) the following inscription, immediately below the number of the suit in the title of
the suit, namely:-- "(Under Order XXXVII of the Civil Procedure Code, 1908)."

(2) The summons of the suit shall be in Form 4 in Appendix B or in such other Form
as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he
enters an appearance and in default of his entering an appearance the allegations in the plaint
shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not
exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up
to the date of the decree and such sum for costs as may be determined by the High Court from time
to time by rules made in that behalf and such decree may be executed forthwith.

Rule 3. Procedure for the appearance of defendant.--(1) In a suit to which this
Order applies, the plaintiff shall, together with the summons under Rule 2, serve on the defendant a
copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such
service, enter an appearance either in person or by pleader and, in either case, he shall file in
Court an address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes,
required to be served on the defendant, shall be deemed to have been duly served on him if they are
left at the address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given
by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself,
either by notice delivered at or sent by a pre paid letter directed to the address of the plaintiff's
pleader or of the plaintiff, as the case may be.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the
defendant a summons for judgment in Form 4-A in Appendix B or such other Form as may be
prescribed from time to time, returnable not less than ten days from the date of service supported
by an affidavit verifying the cause of action and the amount claimed and stating that in his belief
there is no defence to the suit.
290 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) The defendant may, at any time within ten days from the service of such summons
for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit, and leave to defend may be
granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that
the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or
that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted
by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount
so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,--

(a) if the defendant has not applied for leave to defend, or if such application has
been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim,
the Court or Judge may direct him to give such security and within such time as may be fixed by the
Court or Judge and that, on failure to give such security within the time specified by the Court or
Judge or to carry out such other directions as may have been given by the Court or Judge, the
plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the
delay of the defendant in entering an appearance or in applying for leave to defend the suit.

12. A perusal of the amended provisions of Rules 1, 2 and 3 would go to show that by
virtue of amendment the list of courts to which, and the classes of suits in which, summary
procedure was applicable was expanded. Apart from that the amendment provided for the sequence
in which the defendant had to enter an appearance upon service of summons in From 4 and,
thereafter to apply for leave to defend upon service of summons for judgment in Form 4-A.
Because before the amendment the defendant had to obtain leave of the Judge to appear and to
defend. Accordingly, under the amended provisions the sequence is that summons of the suit is
issued first and when the defendant appears, the plaintiff is to serve on the defendant a summons
for judgment. When summons for judgment is served, the defendant has to obtain leave of the
Court to defend the suit. Prior to the amendment, there was no provision for service of summons
for judgment though the summons of the suit were to be served in Form 4 whereas now the
defendant is to be first served summons in Form 4 and, thereafter, when he enters appearance in
response thereto, the plaintiff is required to serve on him the summons for judgment in Form 4 A,
which has to be supported by an affidavit verifying the cause of action and the amount claimed
with a statement that in his belief there is no defense to the suit. Upon service of the summons for
judgment in Form 4 A, the defendant has a right to apply for leave to defend, at any time within ten
7 All. Sam Higginbottom Institute of Agriculture Technology & Sciences Vs M/S Acurite
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291
days from the date of service, supported by an affidavit or otherwise disclosing such facts as may
be deemed sufficient to entitle him to defend, upon which, leave to defend may be granted to him
unconditionally or upon such terms as may appear to the Court or Judge to be just. Proviso 1 to
sub-rule (5) of Rule 3 of Order XXXVII provides that leave to defend shall not be refused unless
the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a
substantial defense to raise or that the defense intended to be put up by the defendant is frivolous or
vexatious. Proviso 2 of sub-rule (5) of Order XXXVII provides that where a part of the amount
claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit
shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

13. At this stage, it would be useful to take notice of the format in which summons in a
summary suit are to be served on the defendant. Form 4 in Appendix B of the Code provides the
format in which summons in a summary suit are to be served. The Form 4 in Appendix B reads as
under:-

"No.4

SUMMONS IN A-SUMMARY SUIT'

(Order XXXVII, Rule 2)

(Title)

To
[Name, description and place of residence]

Whereas........................[Name, description and place of residence] ................
has instituted a suit against you under Order XXXVII of the Code of Civil Probedure, 1908, for Rs.
........... and interest, you are hereby summoned to cause an appearance to be entered for you, within
ten days from the service hereof, in default whereof the plaintiff will be entitled, after the
expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of
Rs....... . and the sum of Rs......... for the costs, together with such interest, if any, as the Court may
order.

If you cause an appearance to be entered for you,.......the plaintiff will thereafter
serve upon you a summons for judgment at the hearing of which you will be entitled to move the
Court for leave to defend the suit.

Leave to defend may be obtained if you satisfy the Court by affidavit or
otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be
allowed to defend.

Given under my hand and the seal of the Court, this...... day of.....20.....
292 INDIAN LAW REPORTS ALLAHABAD SERIES

 Judge."

14. From 4 A provides for the format in which the summons for judgment in a summary
suit is to be served on the defendant. The same reads as under:-

"No. 4A

SUMMONS FOR JUDGMENT IN A-SUMMARY SUIT'

(Order XXXVII, rule 3)

(Title)

In the ..........Court, at ..........Suit No.. .......of 19..../20....

X.Y. Z. .................................................................Plaintiff

versus

A. B. C. .............................................................Defendant.

Upon reading the affidavit of the plaintiff the Court makes the following order,
namely:-

Let all parties concerned attend the Court or Judge, as the case may be, on the day
of .../20...,at O'clock in the forenoon on the hearing of the application of the plaintiff that he be at
liberty to obtain judgment in this suit against the defendant (or if against one or some or several,
insert names) for Rs.......... and for interest and costs.