Law:

Section:

Civil Procedure Code (V of 1908)--- ----O. XXXVII, R.2 & O.X, R. I---Suit for recovery of money based on negotiable instrument---Application for leave to appear and defend suit­--Violation of procedure by the Court and its impact elaborated. The plaintiff instituted a suit under Order XXXVII, rule (2), C.P.C. and after registration of the suit summons in the prescribed mode was issued to the defendant specifying therein that he can apply for leave to appear and defend the suit supported by affidavit or declaration showing that there was a legitimate cause to defend the suit or reasons that he could be allowed to appear and defend the suit within specified time. In response to the summons, the defendant applied for leave to defend the suit on the grounds mentioned in the application and supported by affidavit. On behalf of the defendant his counsel made appearance and the Court, after hearing the parties' counsel in the light of their respective contentions raised before the Court, instead of deciding the application for leave to defend the suit, with the consent of the parties' counsel, sent the disputed cheques to the concerned branches of the banks for verification of the signature of the account holders. On a subsequent date, in view of the reports sent to the Court by the Managers of the Banks, on the request of the plaintiff's counsel, it summoned Managers of the said branches of the Bank, who were orally examined and substance of their examination was noted in the relevant order sheets. The counsel for the defendant took the objections before the Court that the Managers of the banks could not be examined at the given stage of the proceedings and in any case if the Court was to consider substance of the examination of the representative of the banks, he should have been provided opportunity to cross-examine them but such opportunity was declined on the ground that they were summoned only for the satisfaction of the Court and for verification of the reports earlier sent by them to the Court. Bare perusal of the provisions of Order XXXVII, C.P.C. would go to show that on institution of a suit based upon negotiable instrument summary procedure had been…

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