TMI Blog2008 (12) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aside the impugned order dtd. 19/4/2006 passed by the learned 4th Additional Senior Civil Judge, Surat below application Ex.28 in Summary Civil Suit No. 69 of 2002, by which the learned trial court has granted conditional leave to the petitioners -defendants to defend the aforesaid suit on condition to deposit ₹ 15 Crores in the court. Civil Revision Application No. 66 of 2007 is filed by the petitioner - original plaintiff of Summary Civil Suit No. 69 of 2002 challenging the order dtd. 19/4/2006 passed by the learned 4th Additional Senior Civil Judge, Surat below application Ex.28 in Summary Civil Suit No. 69 of 2002, by which the learned trial court has granted conditional leave to the petitioners -defendants to defend the aforesaid suit on condition to deposit ₹ 15 Crores in the court and not allowing the application for Judgement for Summons. 4. Special Civil Application No. 11471 of 2006 is filed by the petitioners - original defendants of Summary Civil Suit No. 38 of 2003 under Article 227 of the Constitution of India for appropriate writ, order and/or direction, quashing and setting aside the impugned order dtd. 19/4/2006 passed by the learned 4th Additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupees and therefore, by way of token damages, the aforesaid suit is filed for recovery of ₹ 250 Crores. The plaintiff submitted an application Ex.11 titling the said application as Summons for Judgement. However, it appears that the said application was to treat the said suit ex-parte and pass a decree in the said suit on the ground that appearance made by the defendants in the suit is defective. The learned trial court issued the notice upon the defendants in the said application and the defendants submitted application Ex.28 raising contention that the suit is not maintainable under Order 37 of the Code of Civil Procedure and whether such a suit is maintainable as Summary Suit should be decided first. By the said application, the defendants also prayed for granting unconditional leave to them to defend the said suit. The defendants also filed another application Ex.30 under Order 6 Rule 16 and under Order 7 Rule 11 of the Code of Civil Procedure praying for deletion of certain pleadings and for rejection of the plaint. In the meantime, the learned trial court passed the impugned order dtd.9/4/2006 below application Ex.28 and granted conditional leave to the defendants to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said application, the defendants also prayed for granting unconditional leave to them to defend the said suit. The defendants also filed another application Ex.23 under Order 6 Rule 16 and under Order 7 Rule 11 of the Code of Civil Procedure praying for deletion of certain pleadings and for rejection of the plaint. In the meantime, the learned trial court passed the impugned order below application Ex.22 and granted conditional leave to the defendants to defend the suit on condition to deposit ₹ 35 Crores by the impugned order 19/4/2006. Being aggrieved by and dissatisfied with the aforesaid order granting conditional leave to the defendants on condition to deposit ₹ 35 Crores and in not granting unconditional leave, the petitioners defendants have preferred present Special Civil Application under Article 227 of the Constitution of India. Against the impugned order passed below application Ex.22 in granting conditional leave to the defendant on condition to deposit ₹ 35 Crores and in not allowing the application for Summons for Judgement and not decreeing the suit, the original plaintiff has also preferred Civil Revision Application No. 67 of 2007. 8. Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared with Mr.C.L. Soni, learned advocate on behalf of the original defendants in each of the petitions and Ms.Kalpana Brahmbhatt, learned advocate has appeared on behalf of each of the original plaintiff. 10. Mr.Mihir Thakor, learned Senior Advocate appearing on behalf of the original defendants has submitted that the learned trial court has materially erred in not granting unconditional leave to the defendants to defend the respective suits and in granting conditional leave to defend the suits to the defendants on condition to deposit ₹ 15 Crores, ₹ 35 Crores and ₹ 50 Lacs, respectively. It is submitted that the learned trial court has not appreciated the fact that such Summary Suits under Order 37 of the Code of Civil Procedure claiming damages for defamation and for declaration and permanent injunction are not maintainable at all. It is submitted that when such Summary Suits for the relief sought in the aforesaid suits are not maintainable, the learned trial court ought to have granted unconditional leave to the defendants to defend the suits. It is submitted that as such, the learned trial court ought to have decided the application submitted by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that even Order 37 of the Code of Civil Procedure applies to the certain classes of suits. It is further submitted that suits filed by the respective plaintiffs are for recovery of uncertain damages for defamation and not upon the Bills of Exchange, Hundi or Promissory Notes, nor the plaintiffs have sought the amount to recover the debt or liquidated demand in money payable by the defendants on any written contract in any manner or guarantee and therefore, the aforesaid suits cannot be treated as Summary Suit and no procedure as required to be followed under Order 37 of the Code of Civil Procedure has been followed. It is further submitted that Order 37 Rule 3 of the Code of Civil Procedure provides for appearance of the defendants, to which. Order 37 applies. Therefore, it is submitted that the learned trial court is not justified in granting conditional leave to the defendants in a suit filed by the respective plaintiffs to which Order 37 does not apply. 12. It is also further submitted that even the plaintiffs have not complied with the mandatory requirement for Summons for Judgement under the provisions of Sub Rule 4 of Rule 3 of the Code of Civil Procedure. It is submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. By making above submissions, it is requested to dismiss: aforesaid Special Civil Applications and allow aforesaid Civil Revision Applications. 15. Heard the learned advocates appearing on behalf of the respective parties at length. 16. At the outset, it is required to be noted that the respective suits in question are filed by the respective plaintiffs as Summary Suits under Order 37 of the Code of Civil Procedure claiming damages for defamation and for declaration and permanent injunction. In Summary Suit No. 69 of 2002, the original plaintiff has prayed the following reliefs in para 13:- (1) Be pleased to award an amount of ₹ 2,50,00,00,000 ( Rupees Two Thousand Five Thousand Million) with due interest being the amount of damages for defamation from the date of the suit till recovery thereof to the plaintiff from the person and property of the defendants. (2) Be pleased to declare that the defendants ought to have published notice making direct or indirect defamation of the plaintiff, (3) Be pleased to grant permanent injunction restraining the defendants from transferring or selling their all types of rights being intellectual properties with design, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to award entire cost of this suit from the defendants. (5) Be pleased to grant such other special or proper relief as may be deemed fit on the facts of this suit. 19. Thus, as stated above, the respective plaintiffs have instituted respective Summary Civil Suits under Order 37 of the Code of Civil Procedure claiming decree of ₹ 250 Crores, ₹ 500 Crores and ₹ 10 Crores, by way of damages on the ground of defamation etc. Sub Rule (2) of Rule 1 of Order 37 and Rule 2 of Order 37 of the Code of Civil Procedure are reproduced hereinbelow:- Sub Rule (2) of Rule 1 of Order 37 reads as under:- (2) Subject to the provisions of sub-rule (1), the Order applies to the following classes o 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 principle is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the penalty, or; on a guarantee where the claim against the principal borrower is in respect of debt or liquidated demand only. Even it cannot be said that the suit is to recover a fixed sum of money, as what would be the damages is to be ascertained and/or adjudicated upon on leading appropriate evidence and therefore also it cannot be said that the aforesaid suits are to recover fixed sum of money and therefore, prima facie it appears that such suits claiming damages for defamation are not maintainable and/or the issue as to whether such a summary suit is maintainable or not, can be said to be a serious triable issue. 20. It is also to be noted that rule 2 of Order 37 provides that if a plaintiff desires to institute a summary suit under Order 37 of Code of Civil Procedure , he is required to institute the suit by presenting a plaint which shall contain; (a) a special specific averments to the effect that the suit is filed under the said order; (b) That no relief which does not fall within the ambit of the said rule is being claimed in the plaint. In the present case, as stated hereinabove, the plaintiff has also claimed decree of declaration and permanent inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure is enacted, such application under Order 7 Rule 11 of the Code of Civil Procedure is required to be decided by the courts at the earliest. 22. It is also required to be noted that even the learned trial court in para 27 of the impugned order has specifically observed that defendants have some triable issues as the plaintiff has filed present Summary Suit on the basis of the liquidated demand. Of course, the plaintiff has also admitted that there is no privity of contract with the defendant . The suit is filed on the basis of the damages of alleged advance which is made by the defendants, then it is also one of the triable issue, that whether the defamation has been made or not by the defendants? Now considering the above, it appears that the learned trial court has committed an error in not granting unconditional leave to the respective defendants more particularly when it prima facie appears that such Summary Suits under Order 37 of the Code of Civil Procedure are not maintainable. Under the circumstances, the impugned orders passed by the learned trial court in not granting the unconditional leave to the respective defendants and granting conditional leav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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