1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.837 OF 2009 1. Panchappa S/o.Gangappa Gungune Age-80 years, Occu-Business, R/o.House No.8/6/336, Majid Road, Ganj Golai, Latur, Tq. And Dist. Latur 2. Laxmibai W/o. Panchappa Gungune, Age-70 years, Occu-Household, R/o.House No.8/6/336, Majid Road, Ganj Golai, Latur, Tq. And Dist. Latur 3. Satish S/o.Panchappa Gungune, Age-40 years, Occu-Business, R/o.House No.8/6/336, Majid Road, Ganj golai, Latur, Tq. And Dist. Latur PETITIONERS VERSUS 1. Gyanoba S/o.Narayanrao Rukme, Age-62 years, Occu-Business, Proprietor of M/s. Gajanan Trading Co. R/o.Lokhand Galli, Latur, Tq. And Dist. Latur 2. Smt.Rajeshwari W/o.Rajkumar Gungune, Age-34 years, Occu-Household and Business, R/o.House No.8/6/336, Majid Road, Ganj golai, Latur, Tq. And Dist. Latur. 3. Ankita D/o. Rajkumar Gungune, Age-11 years, Occu-Education, 2 under guardianship of her natural mother Orig.defendant no.1. R/o.House No.8/6/336, Majid Road, Ganj Golai, Latur, Tq. And Dist. Latur 4. Abhiraj S/o. Rajkumar Gungune, Age-7 years, Occu-Education, under guardianship of her natural mother Orig.defendant no.1. R/o.House No.8/6/336, Majid Road, Ganj Golai, Latur, Tq. And Dist. Latur 5. Ramling S/o.Panchappa Gungune, Age-44 years, Occu-Business, R/o.Pochamma Galli, Latur, Tq.and Dist.Latur 6. Shivling S/o.Panchappa Gungune, Age-44 years, Occu-Business, R/o.Pochamma Galli, Latur, Tq. And Dist. Latur RESPONDENTS Mr.C.R.Deshpande, advocate for petitioner. Mr.Amit Deshpande, advocate for respondent no.1 Mr.S.I.Nandode, advocate for respondent no.2 to 6. (CORAM : A.V.POTDAR, J.) DATE : 15/07/2009 ORAL JUDGMENT : 1. By the present writ petition under Article 227 of The Constitution of India, the original defendant no.4 to 6 who are defendants in suit as summary suit no.1/2007, on the file of C.J.S.D. Latur have challenged the order passed dated 12/03/2008 and 18/03/2008, the impugned 3 under this writ petition. 2. Rule. 3. Rule made returnable forthwith. By consent of the parties, the writ petition is taken up for final hearing at the stage of admission itself. 4. The facts which gave rise to file the present writ petition can be summarized as the first respondent herein has filed the suit styled as summary suit under order 37 of CPC in the Court of Civil Judge, S.D. Latur against the petitioners and respondent no.2 to 6 for recovery of sum of Rs.33,55,494/- for the transaction mentioned in para no.2 of the plaint. It is mentioned in para no.10 of the plaint that the plaintiff (respondent no.1 herein) is not seeking any relief which does not fall within the ambit of Order 37 and rule thereunder of CPC, and entitled to file the suit as a summary suit. In para no.11, it is alleged that if the Hon’ble Court by any reason come to the conclusion that the present suit would not be precluded as summary suit then suit will be treated as ordinary suit. It further appears that in response to the summons for judgment, the petitioners as well as respondent no.2 to 6 in the present writ petition appeared. The present petitioners have filed their written statement under Order 8 Rule 1 of CPC alongwith the application for leave to defend on 12/03/2008 on which it appears that the order was passed on furnishing surety, written statement will be read and recorded. It 4 further appears that as application for leave to defend was separately moved on 22/03/2007, on which the order was passed, “Read application, perused the documents. There is a good defence and triable issues for the defendants, hence the application is allowed. Leave to defend granted on furnishing the surety of the said amount.” This order appears to be passed on 12/03/2008. It further appears that thereafter, an application was appeared to be filed by the present petitioners to modify the order to the extent of furnishing surety by these defendants, which was rejected by order dated 18/03/2008 by the learned Trial Court that the order if the defendants are not willing to give surety as per the order and if this condition is wrong, then they may get remedy from appropriate forum, hence rejected. This order is impugned under this writ petition. 5. Before considering the submissions across the bar advanced during the course of arguments by learned advocate for petitioners as well as for the respondents, I may express my regret about the wording used in the order dated 18/03/2008 by the learned trial court which words “if the order is wrong, then may get remedy further from the appropriate forum”. It appears from these words used in the order that the learned trial court has not taken any pain to pass the reasoned order as to why the application filed by the petitioners defendants before the trial court, but it appears to be as this application is moved, the trial court is annoyed by the attitude of these defendants and used the words “may get the remedy from appropriate forum” which appears to be the result of this annoyance 5 of the trial court. 6. Considering the submissions across the bar and after perusal of the record of the suit which is registered as a summary suit, first it is necessary as to whether the suit filed by the first respondent is in fact coming under the ambit of Order 37 of CPC. For clarity, it is necessary to reproduce Order 37 which read as follows : Order 37 of CPC : 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 6 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. On clear reading of Order 37(2)(a) of CPC, which speaks for suit upon a bill of exchange, hundies and promissory notes. Admittedly the suit filed by the first respondent is not a suit based upon bill of exchange, hundies or promissory note, then the suit filed by the first respondent plaintiff before the trial court will not cover under the ambit of Order 37(2)(a) of CPC. If the suit to cover under Order 37(2) (b) of CPC, then the suit must be based on a written contract. The present suit before the trial court is not based on the written contract between the parties to the suit 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, which is not the subject matter of the suit before the trial court and as per order 37(2)(b)(iii) on a guarantee, where the claim against the principal is in respect of a debt, or liquidated demand only. The suit is not based on a guarantee by these petitioners and respondent no.2 to 6 with transaction with respondent no.1. Thus the fact is clear that considering the contents of para no.2 of the plaint, the suit of the first respondent is not based 7 on any of the ingredients as contemplated under Order 37 Rule (2)(a) of CPC or under Order 37 Rule (2)(b)(i) to (iii) and if it is so, then it is to be concluded that the suit filed by the first respondent is not covered under the ambit of a summary suit as defined under Order 37 of CPC. If the suit filed by the first respondent do not cover under the ambit of a summary suit as defined under Order 37(2) of CPC, then the suit to be tried as a ordinary suit and in the ordinary suit no relief is required to defend the suit. The very foundation about the registration of the suit as a summary suit was a patent error and illegality on the part of the staff of Civil Judge, S.D. Latur as well as the institution of the suit was not properly considered by the Presiding Officer also whether the suit to be registered as a summary suit or to be treated and registered as a ordinary suit. If at the time of registration of the suit itself, if the proper care might have taken either by the Presiding Officer or the staff attached to the Presiding Officer, then this contingency much not have arise. 6. Once this Court has come to the conclusion that the suit filed by the first respondent in the trial court can not be treated as a summary suit within the meaning of Order 37 of CPC, then no question arise to grant leave to the petitioners herein for unconditional leave to defend the suit as once the suit to be treated as a ordinary suit, it is constitutional right of the defendants or the persons who are arrayed as a defendants in that suit to defend the suit by filing the written statement unconditionally. 8 7. In the premise, the rule made absolute as indicated above. All the orders passed about refusal of leave to defend unconditionally are hereby set aside. Writ petition stands disposed of accordingly with no order as to costs. The Registrar is hereby directed to send the copy of this order to the concern Presiding Officer for the purpose that he has not to commit the same mistake in future. (A.V.POTDAR, J.) khs/JULY 2009/wp837.09