Law: Civil Procedure Code (V of 1908)

Section: 1,2,3,,4,5

Civil Procedure Code (V of 1908)--- ----O. XXXVII, Rr.1, 2, 3, 4 & O.V, Rr. 1, 5---Suit for recovery on the basis of negotiable instrument---Issuance of summons to the defendant---Form No. 4, Appendix-B of Civil Procedure Code, 1908, non-compliance of---Effect---Application for leave to appear and defend the suit filed by the appellant /defendant was dismissed being barred by time, and thereupon the suit filed by the respondent / plaintiff was decreed---Plea of the appellant/ defendant was that he was never served and as and when he came to know about the pendency of the suit, an application for leave to appear and defend the suit was filed---Validity---Order XXXVII of the Civil Procedure Code, 1908 ('the O. XXXVII, C.P.C.'), is a special dispensation---Under O. XXXVII, C.P.C., unlike a regular civil suit, procedure has been provided to file and proceed with the suit filed on the basis of negotiable instruments, as contemplated in the Negotiable Instruments Act, 1881---In a suit filed under O.XXXVII, C.P.C, which is summary in nature, under R.3 of the said Order, a defendant, who has been served, within stipulated time, has to seek leave to appear and defend the suit and once the leave is granted, the suit shall be converted into a regular civil suit and will be decided in accordance with the general procedure prescribed in C.P.C.---Unlike the regular civil suit where summons for service of the defendant is issued under O.V, Rr.1 & 5, C.P.C., the format of which is given in Form No. 2 Appendix-B, C.P.C., in a suit filed under O.XXXVII, C.P.C., R.2 of C.P.C. a defendant has to be issued summons in the specific format as given in Form No. 4, Appendix-B of C.P.C.---Cumulative reading of the summonses, Forms 2 & 4, Appendix-B of C.P.C., would show that unlike a regular civil suit, where defendant is called to appear in the court, either himself or through a representative in a suit filed under O. XXXVII, C.P.C., defendant can only contest the suit subject to grant of leave to appear and defend the suit, that too on an application filed by him within 10 days of his service of summons (as provided under R. 3 of O. XXXVII, C.P.C., issued in the format…

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