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Original Civil Jurisdiction Application under O. XX, r. 11(1), C. P. C. praying that decretal amount be made payable by instalments in Suit No. 50 of 1951, under O. XXXVII, C. P. C., decided on 29th March, 1951.
O. XXXVIL‑Suit on dishonoured cheques Defendant applying under O.XX, r. 11 (1) C. P. C. that amount be made payable by instalments‑Right to apply not affected by provisions of O. XXXVII.
The right of the defendant to ask the Court to make a decree payable by instalments under O. XX, rule 11, sub‑rule (1), lies immediately beyond the stage up to which the defendant shall not appear to defend the suit unless he obtains leave. This right of the defendant is not affected by the provisions of O. XXXVII.
C. T. K. M. S. R. M. Chettyar Firm v. O. A. O. K. C. T. Chettyar Firm I L R (1933) 11 Rang. 424 fol.
Pestonji Shapurji ‑ Jamshedji Nowroji I L R (1926) 50 Bom. 262 ref.
Faruqui for Plaintiffs.
Mahmood for Defendants.
‑The plaintiffs have brought this suit under Order 37, C. P. C. for the recovery of Rs. 20,000, interest and costs due by the defendants on two cheques for Rs. IO,C00, each, drawn by the defendants in favour of the plaintiffs upon the Muslim Commercial Bank Ltd., which on presentation were dishonoured by non‑payment.
Summons issued in Form No. 4 of Appendix B to the Code of Civil Procedure, which was served upon the defendant on 6th February 1951.
On 15th February, 1951, the defendants made an application purporting to be under Order 20, rule 11, sub‑rule (1), C. P. C. praying that the amount claimed by the plaintiffs against the defendants may be made payable by instalments of Rs. 1,000, a month. Notice issued to the plaintiffs of this application.
The plaintiffs' contention is that in a suit under Order 37, the defendants cannot appear at the hearing or the purpose of obtain ing an order making a decree payable by instalments under Order 20, rule 11, sub‑rule (1) and they have relied upon the case Pestonji Shapurji v. Janrshedji Nowroji (I L R (1926) 50 Bom, 262)
The defendants' argument is that there is nothing in Order 37 to abrogate the Court's jurisdiction to order instalments under Order 20, rule 11, sub‑rule (1), arid they rely on the case of C. T. K. M. S. R. M. Chattyar Firm v. O. A. O. K. C. T. Chettyar Firm (I L R (1933) 11 Rang. 424) which has considered and dissented from the earlier Bombay case. No latter case has been cited.
In the Bombay case, Mcleod, C. J. referred to Order 20, rule 11 sub‑rule (1), and observed that it clearly contemplated that the application for instalments should be part of the hearing, and held that an order under it must be made simultaneously with the decree, and that ordinarily speaking a person who cannot appear at the hearing, cannot be allowed to appear in order to apply for payment of the decretal amount by instalments, as the two constitute one proceeding.
In the Rangoon case, Page C. J. held that by applying at the time of passing the decree in a suit under Order 37, that the Court should make an order for payment of the decretal amount by instalments, the defendant does not contravene any of the provisions of Order 37, but merely seeks an order that the decretal amount should be made payable by instalments pursuant to the Court's jurisdiction under Order 20, rule 11 sub‑rule (1), C. P. C. and that because a defendant is not entitled to appear and defend the suit, it does not follow that he is not entitled to ask the Court to order the decretal amount should be made payable by instalments, and that there is nothing in Order 37 that bars the defendant from making such an application.
It is clear from the provisions of Order 37, rule 2, sub‑rule (2) and rule 3, sub‑rule (1), that the leave which the defendant has to obtain from the Court is "to appear and defend" the suit. The object of these provisions is, therefore, reasonably clear‑the leave is necessary to enable the defendant to put in an appearance for the purpose of defending the suit, and sub‑rule (2) of rule 2 says that "the defendant shall not appear or defend the suit, unless he obtains leave...so to appear and defend".
Upon these provisions, I do not think there is room for the suggestion that the leave is necessary to enable the defendant to appear for a purpose other than to defend, although the last paragraph in Form No. 4, Appendix B states that leave to appear may be obtained on "showing that there is a defence to the suit on the merits, or that it is reasonable" that the defendant "should be allowed to appear in the suit". This form is governed by the provisions of the rules mentioned, and it cannot extend their meaning.
Order 37, rule 7 prescribes that the procedure, in suits under that order is to be tile same as the procedure in suits instituted in the ordinary manner, except as is provided by that order.
It becomes necessary, therefore, to examine the provisions of the Code of Civil Procedure, which gives the defendant the right to appear. The right to appear is given to the defendant under Order 6, rule 1, sub‑rule (2) upon a summons issued to him "to appear and answer the claim" under sub‑rule (1). Sub‑rule 5 says that the summons shall direct whether it shall be for settlement of issues only or for final disposal of the suit, and sub‑rule 6 prescribes that the day fixed shall allow the defendant sufficient time "to appear and answer on such day". Order 9 rule 1 requires the defendant to be in attendance at the Court‑house "on the day fixed in the summons for the defendant to appear and answer", and rule 6 prescribes that when the plaintiff appears and the defendant does not appear though duly served, the Court will proceed ex parte. Under rule 7, where the Court has adjourned the hearing of the suit exparte, the defendant" may ----------be heard in answer to the suit "if he" appears and assigns good cause for his previous non‑appearance".
But these provisions of the Code are not exhaustive, and section 151 saves the inherent powers of the Court to make such orders as may be necessary for the ends of justice, in the exercise of which Courts have permitted appearances to enable litigants to move them. Where the defendant has a right to claim any relief given to him by the Code, he obviously has the right to appear and move the Court to obtain it.
In the Bombay case, McLeod, C. J. proceeded on the basis that the passing of a decree and making it payable by instalments remain one procedure, and the hearing is not finished until a complete decree is passed directing, as the case maybe, that the decretal amount should be payable at once or by instalments, But it does seem to me that here there are two stages which are dearly marked and distinct. The Court may hear only the plaintiff till it reaches its conclusions, which are to form the basis of its judgment, and thereafter hear both the defendant and the plaintiff on the question whether the decree should be payable by instalments.
I think it is of some importance to keep these two stages distinct, because of the provisions of Order 37, rules 2 and 3, under which the defendant does not need leave, except, to defend the suit. Order 37, rule 2, sub‑rule (2) lays down that in the absence of such leave the allegations in the plaint are to be deemed to be admitted, and the plaintiff is entitled to decree as therein mentioned, The decree follows upon such constructive admissions.
Order 37, rule 2, sub‑rule (2) uses these words of prohibition the defendant shall not appear or defend his suit unless he obtains leave", and it seems clear that the word defend' has reference to a defence upon the merits of the case. These are matters which a Court considers before reaching the conclusions which are to be the basis of its judgment, and the words of pro hibition do not reach beyond that stage.
The right of the defendant to ask the Court to make a decree payable by instalments under Order 20, rule 11, sub‑rule (1), lies immediately beyond that stage. This right of the defendant, therefore, is not affected by the provisions of Order 37.
I have, therefore, reached the conclusion that the application made by the defendant under Order 20, rule 11, sub‑rule (1) must be considered.
A. H. Application ordered to be considered.
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