Judgment:
Sunanda Bhandare, J.
(1) This civil revision is directed against the judgment and order of the Sub Judge, Delhi dated 27th November, 1986 in suit no. 336 of 1984.
(2) The brief facts of the case are as follows : The petitioner herein filed a suit for the recovery of Rs. 7,600.00 against the defendants being amount towards balance under a pronote, interest @ 12 % per annum and notice expenses. It was averred in the plaint that the plaintiff company is doing chit fund business wherein a chit for Rs. 9.000.00 for 30 months and subscription of Rs. 300.00 per month was subscribed by defendant no. I who was declared a successful bidder on 10th June 1982 and was to get the amount of chit, after deduction of the offered bid of Rs. 3.150.00 . Respondents 2 and 3 stood as guarantors for re-payment of the future monthly subscription of a total sum of Rs 8,100.00 . A promissory note was executed by the respondents to that effect on 19th June 1982 accepting joint and several liability. The respondents agreed to pay back the money with interest @ 12% per annum in case of default and also executed an indemnity bond. Since respondent no. I failed to make the payment, the petitioner claimed the balance amount on the basis of the pronote by way of a suit under Order 37 of the Code of Civil Procedure.
(3) Notice and summons were issued to the defendants which were duly served on all the three defendants, however none of them appeared or made an application for leave to defend within the statutory period. When the matter came up before the trial court on 27th November 1986 though none of the defendants appeared, the trial court ordered that the suit cannot be treated under the provisions of Order 37 of the copy of Civil Procedure but be tried as an ordinary suit for which fresh summons were directed to be issued for settlement of issues.
(4) No one appears for the respondents/defendants even in this Court inspire of service.
(5) It was contended by the learned counsel for the petitioner that the petitioner was claiming the amount in the suit pursuant to the pronote issued by the defendants. The defendants having failed to apply for leave to defend, the plaintiff became entitled to judgments forthwith.
(6) I find from the impugned order that the trial court passed the order for treating the suit under the general provisions and not under Order 37 of the Code of Civil Procedure because the trial court was of the opinion that the plaintiff had based its claim on the basis of the statement of account attached to the plaint which includes bid amount, commission charges etc. The trial court further directed issue of fresh summons to the defendants for settlement of issues. In my view, the procedure adopted by the trial court is not correct. Sub rule (3) of Rule 2 of Order 37 and sub-rule (6)(a) of Rule 3 of Order 37 of the Code of Civil Procedure read as follows:-
'(3)The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance to the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.'
'(6)At the hearing of such summons for judgment,- (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused the plaintiff shall be entitled to judgment forthwith; or'
(7) On a plain reading of these two rules it is clear that if the defendant fails to move an application for leave to defend within the specified time, the plaintiff is entitled to judgment forthwith and the allegations in the plaint are deemed to have been admitted. Since in the present case the defendants had not chosen to appear inspire of service of summons in the suit filed under Order 37 of the Code of Civil Procedure, in my view, the trial court exceeded its jurisdiction in directing fresh summons to be issued to the defendants treating the suit as one under the general provisions. It was not open to the trial court at that stage, to treat the suit under the general provisions. Once the suit was admitted and registered under Order 37 and the defendants had failed to appear or seek leave to defend, the plaintiff under the rules mentioned here in above was entitled to judgment forthwith. Further more, even otherwise it appears that the amount claimed was only balance of the pronote and agreed interest at the rate mentioned in the pronote itself and not on the basis of the accounts as observed by the trial court.
(8) The petition is, thereforee, allowed and the order of the Sub Judge, Delhi dated 27th November 1986 is set aside. The suit is remanded back to the trial court for trial under the provisions of Order 37 of the Code of Civil Procedure. No costs.