1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.212 OF 2010 WITH CIVIL APPLICATION NO.383 OF 2010 1 Murtuza Ahmed Abdul Gafoor Shaikh aged about 52 years, Indian Inhabitant 2 Shabnum Begum Murtuza Ahmed Shaikh aged about 46 years, Muslim, Indian Inhabitant, Occ: Housewife, Both nos. 1 and 2 residing at Bhartiya Kamla Nagar, Near National Urdu High School, Salt Pan Road, Antop Hill, Mumbai 400 037 ...Applicants. v. Mumtaz Ahmed Shaikh Mohammed Shaikh aged about 43 yers, Muslim, Indian Inhabitant, Occ: Self Employed, permanently residing at Bhartiya Kamla Nagar, Near National Urdu High School, Salt Pan Road, Antop Hill, Mumbai 400 037 ...Respondent. 2 Mr. Bhavesh Parmar i/by Ms Sandhya Mailagir, advs. For the Applicants. Smt. Usha R.Tiwari, adv. For the Respondent. CORAM : J.H.Bhatia, J. DATE : 29th September, 2010 ORAL JUDGMENT : 1 The learned counsel for the plaintiff/respondent contended that revision application is not tenable in view of the proviso to Section 115. Leave granted to the applicants to convert the same to the writ petition. This revision application be re- registered as writ petition. 2 Rule. Rule made returnable forthwith. Heard the learned counsel for the Parties. 3 Original defendants in Short Cause Suit No.2307 of 2009 have challenged the order dated 21 st January, 2010 whereby the City Civil Court directed to proceed with the notice of motion and the suit without reply and written statement respectively. The learned counsel for the defendants/applicants vehemently contended that the suit summons in form 3, which was issued and served on the defendants did not require them to file 3 written statement and, therefore, Court could not have passed the order to proceed without the written statement in the matter. 4 On perusal of the record it appears that the suit was filed by the plaintiff on 16.10.2009 and had also taken out notice of motion for interim relief. On 30.10.2009 Court directed to issue writ of summons to be served on the defendants and the matter was adjourned to 27 th November, 2009. On 27 th November, 2009, defendant no.1 appeared through advocate Ms. Anjali Ayyer, who filed vakilpatra. As by that time writ of summons sent to the defendant no.2 was not returned back, the Court adjourned the matter to 4 th January, 2010 for filing the reply and the written statement by the defendant no.1 and for waiting service of the notice of motion and writ of summons of the defendant no.2. On 4.1.2010 also the defendant no.1 did not file written statement. On that day, it was observed that the defendants had not cared to file written statement hence, “notice of motion and suit to proceed without reply and written statement” and the matter was adjourned to 21 st January, 2010 for the hearing of the notice of motion and suit without written statement. On 21 st 4 January, 2010 Court noted that the suit summons and the notice of motion were served on both the defendants on 17 th November though they were returnable on 27 th November, 2009 but thereafter within the stipulated period no reply to the notice of motion and no written statement came to be filed, hence, the learned trial Court directed to proceed without reply and written statement. On that day, advocate for the defendant sought time to file reply to the notice of motion and time was granted till the next date, i.e., 22.1.2010. On 22.1.2010 advocate for the defendants took out a notice of motion to set aside the order to proceed without reply and without written statement passed on 4 th January, 2010. However, that notice of motion was rejected on the same day. That is why, the present revision came to be filed. 5 The learned counsel for the revision applicant vehemently contended that the summons should have been issued to the defendants to file written statement and as no such summons was served and the summons sent to them only required them to remain present prepared to answer to the claim of the plaintiff, the trial Court could not have passed the order to proceed without written statement. According to the learned counsel, it was 5 in violation of the Order V Rule 1. Order V Rule 1, 5 and 7 read as follows: 1 Summons.-[(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant: Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim: Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.] (2) A defendant to whom a summons has been issued under sub-rule (1) may appear --- (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. (3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall 6 be sealed with the seal of the Court. 5. Summons to be either to settle issues or for final disposal.- The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly: Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. 6 From the language of these Rules, it appears that in every suit heard by the Court of Small Causes, summons shall be issued for the final disposal of the suit. However, in other suits, the Court shall determine, at the time of issuing the summons, whether the summons shall be for settlement of issues or final disposal. In appendix ‘B’ to the Code of Civil Procedure, Forms of suit summons which may be issued are provided. Form no.1 of the suit summons requires the defendant to appear in the Court in person or by pleader, duly instructed and able to answer all the material questions relating to the suit or who shall be accompanied by some person able to answer all such questions and the summons also directs that as the suit is fixed for final 7 disposal, defendant must be able to produce all the witnesses on that date also. As the Form 1 does not require to file written statement , it can be assumed that form I should be used when the summon is to be issued in the suit filed before the Small Causes Court and such summons may be issued in any other suit which, in the opinion of the Court is simple and does not require any written statement, . 7 Title of the summons in form 2 reads “Summons for settlement of issues” under Order 5 Rule 1 and 5. It provides that the defendant shall be required to appear in the Court in person or pleader duly instructed, and able to answer all the material questions relating to the suit and defendant is further directed to file on that day written statement of his defence and produce all the documents in his possession or power upon which his defence, set off or counter claim is based. Summons in form 2 is not for final disposal but only for appearance, filing of the written statement and documents and settlement of Issues. 8 For Bombay City Civil and Sessions Court, the Bombay City Civil and Sessions Court Rules, 1948 are framed. Rule 51 of the Rules, 1948 8 requires that summons to defendant to appear and answer shall be in one of the Forms 3, 4 or 5 with such variations as the circumstances of the case may require. It appears that form no.3 in the City Civil Court Rules is prescribed for summons to be sent to the defendant in Short Cause Suit, which only requires the defendant to appear in person or by an advocate, able to answer all the material questions relating to the suits but it does not specifically direct the defendant to file written statement. Form No.4 in the Rules, is prescribed for long cause suit, which requires the defendant to appear and to file written statement. 9 In the present case as pointed out earlier the City Civil Court had issued summons in form no.3 requiring defendant to appear for final disposal. Summons was not issued requiring the defendants to file written statement and for settlement of issues. As the suit was registered as Short Cause Suit, the trial Court issued that summons in form no.3. If it would have been Long Cause Suit, the trial Court would have issued summons in form no.4 requiring the defendant to appear and to file written statement and for settlement of issues. No illegality can be found as far as the issuance of summons is concerned. 9 However, as the summons was issued in form no.3 and not form no.4, the trial Court could not have passed the impugned order to proceed with the suit as the defendant had failed to file written statement. If the trial Court found that filing of the written statement in view of the nature of the suit was necessary and the issues were required to be framed, the trial Court should have either issued fresh summons in form no.4 or could have directed the defendants to file written statement and for that purpose, appropriate opportunity and time should have been given. In the present case, trial Court neither issued fresh summons in Form no.4 nor gave any direction to file written statement by giving time to the defendants, and particularly to the defendant no.2. In view of this, on 21st January, 2010, the impugned order passed by the learned trial Court to proceed without reply and written statement was not correct. Defendants took out notice of motion on 22.1.2010 to set aside that order so that they could get opportunity to file reply and written statement. In view of the given circumstances, the trial Court should have allowed that notice of motion and the mistake committed by the trial Court would stand rectified. However, instead of rectifying its mistake, the trial Court rejected that notice of motion also. In view of legal provisions and the 10 rules, it is clear that order passed by the trial Court was wrong. It also committed error in rejecting notice of motion, therefore, it is necessary for this Court to interfere. 10 For the aforesaid reasons, revision application is allowed. The impugned order is hereby set aside. Notice of motion filed by the defendants/revision applicants is hereby allowed. Defendants shall file their written statement within two weeks from this date and the trial Court shall proceed with the suit as per law. 11 As the writ petition (Earlier Civil Revision Application No. 212 of 2010) is finally disposed off, the civil application does not survive and stands disposed off accordingly. Parties shall act on an authenticated copy of this order. (J.H.BHATIA, J.) 11