( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 286 OF 2011 Pradeep s/o. Nivruttinath Kulkarni, Age : 43 years, Occupation : Advocate, Resident of Gut No.86, Plot No.2, Neemkhedi Shivar, Dadawadi, .. Petitioner Jalgaon, District : Jalgaon. (Original plaintiff) versus Municipal Corporation, Jalgaon, Sardar Vallabhbhai Patel Tower, Navi Pet, Jalgaon, Dist. Jalgaon, .. Respondent Through its Commissioner. (Original defendant) ....................... Mr. K.C. Sant, Advocate, for the petitioner. Mr. P.R. Patil, Advocate, for the respondent. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 6TH APRIL 2011 ( 2 ) ORAL JUDGMENT : 1. Heard Adv. Mr. K.C. Sant, for the petitioner / original plaintiff, and Adv. Mr. P.R. Patil, for the respondent / original defendant. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. The petitioner has challenged the order dated 28-10-2010, passed by the learned Civil Judge (Senior Division), Jalgaon, below Exhibit 10, in Summary Suit No. 2/2010, thereby rejecting the application filed by the petitioner for passing the judgment and decree forthwith. The petitioner has also challenged order below Exhibit 12, thereby allowing the application filed by the respondent. By the impugned order the trial court has framed a preliminary issue regarding tenability of suit. 4. Contention is, in a summary suit, trial court could not have framed preliminary issue about maintainability of suit and as respondent / defendant did not give prior notice of appearance, the suit ought to have been decreed ex parte as contemplated by Order XXXVII Rule 2(3) of CPC. Reliance is placed on ( 3 ) provisions of Order XXXVII Sub-Rule 3 of Rule 3 for service of such previous notice. 5. Adv. Mr. P.R. Patil, for the respondent, on the other hand, states that respondent / defendant entered appearance on 16-10-2010 and on that day, the petitioner / plaintiff himself has acknowledged receipt of application moved by defendant for rejection of summary suit. That acknowledgment is sufficient notice under Order XXXVII Rule 3(3) of CPC. He is placing reliance upon judgment of learned Single Judge of Delhi High Court reported at AIR 1987 Delhi 21, in the case of Sri Pal Jain and another Vs. Mulakh Raj, and another judgment of learned Single Judge of Delhi High Court, delivered on 2-3-1993, in the case of Gurdip Singh Vs. Munna Lal. He further contends that as there is no written agreement between parties, the summary suit, as filed, is not maintainable and, therefore, the trial court has correctly framed preliminary issue. According to him, only because of absence of notice, an ex parte judgment was sought and hence rejection of that application at Exhibit 10 by the trial court on 28-10-2010 does not call for any interference. 6. The fact that 16-8-2010 was within 10 days, as contemplated by the provisions of Order XXXVII Rule 3(1) of CPC is not in dispute. Order XXXVII Rule 3(3) mentions notice ( 4 ) to be served on the day of entering the appearance. The respondent entered appearance on 16-8-2010 and knowledge thereof is given to the petitioner on 16-8-2010. It is, therefore, apparent that the provision is substantially complied with. It is, therefore, not necessary to consider the aforesaid two judgments of Delhi High Court to which respondent is making reference. 7. The petitioner had moved application at Exhibit 10 to discard such appearance and to give him ex parte judgment because of requirement of Order XXXVII Rule 2(3) of CPC. Once appearance of respondent / defendant is held to be within time and valid, said provision ceases to comply. Therefore, rejection of that prayer at Exhibit 10 cannot be faulted with. Similarly, application at Exhibit 12 for framing preliminary issue is misconceived and it needs to be read as part and parcel of an attempt to seek leave to defend the suit. There is no scope for framing any preliminary issue here. 8. In the result, the petition is partly allowed. (i) The impugned order dated 28-10-2010, passed by the learned IIIrd Joint Civil Judge (Senior Division), Jalgaon, below Exhibit 12 in Summary Suit No. 2/2010, is quashed and set aside. ( 5 ) (ii) The suit being of summary nature, after respondent / defendant appeared, further steps as contemplated under Order XXXVII Rule 3(4) and (5) needed to be taken. The respondent could have raised all objections after service of summons for judgment upon him under Rule 3 Sub-Rule 5 of Order XXXVII. His present objection at Exhibit 12, therefore, can be treated as such application seeking leave to defend. There is no question of framing issue on it and the trial court will have to consider it while deciding whether to grant leave to him to defend the suit or not. (iii) The petitioner / plaintiff, therefore, shall proceed further under Order XXXVII Rule 3(4) seeking service of summons for judgment in Form No. 4-A on the present respondent. After receipt of such summons, the respondent / defendant can move appropriate application seeking leave to defend and raise additional grounds. His application at Exhibit 12 already on record can also be then treated as part and parcel of his request for granting leave to defend. (iv) The trial court shall thereafter proceed further with adjudication in accordance with law, as expeditiously as possible. ( 6 ) 9. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp286