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Judgment
M.D. Shah, J.—Present Petitioner-original Plaintiff filed Special Summary Suit No. 690 of 2009 before the Civil Court Vadodara against the present Respondent-original Defendant for recovery of Rs. 11,30,122/-with interest @ 18% p.a. from the date of delivery of goods till date of recovery. On summons being served, the Respondent filed an application for leave to defend the suit under Order 37 Rule 5 of the Code of Civil Procedure. Subsequently, the Plaintiff filed a purshis at Ex.30 in said suit declaring that he is abandoning his prayer qua interest. The Defendant raised objection by making endorsement below the purshis to the effect that after filing of the suit, the Plaintiff cannot abandon his claim as there is no provision in the CPC for amending the claim by filing purshis.
After hearing the arguments of both the learned advocates appearing for the respective parties, Trial Court passed order on 30-3-2010 that purshis which is filed at Ex.30 on 18-3-2010 is not accepted at that stage, which is impugned in the present petition.
Heard learned advocates, Mr. H.A. Dave, for the Petitioner and Mr. P.P. Majmudar for the Respondent.
It issubmitted by Mr. Dave that parties to the suit cannot be restrained from making declaration by way of filing purshis to the effect of abandoning certain claim. The Plaintiff has only made a declaration by purshis Ex.30 and no order could have been passed below the said purshis. He placed reliance upon AIR 2004 Bombay 186 in the case of SICOM Ltd. v. Prashant S. Tanna and Ors. wherein it has been held as under:
In a summary suit filed under O.37 the Plaintiff is entitled at any time to abandon or give-up a part of the claim unilaterally. This, the Plaintiff may do by making a statement to be recorded by the Court and without the necessity of the Plaintiff making a formal application for the same by withdrawing the summons for judgment, amending the plaint and thereafter taking out a fresh summons for judgment or otherwise.
It issubmitted by Mr. Majmudar that by filing the purshis, the Plaintiff cannot abandon his claim as suit is filed under the provisions of Order 37 Rule 4 of CPC as a summary suit. It is further submitted that by abandoning the claim by filing purshis, the Plaintiff intended to frustrate the right of defense of the Defendant and summary suit is not maintainable as far as relief of interest is concerned. He further submits that matter was kept for hearing of leave to defend application and the Defendant has completed his arguments. Subsequently thereafter, purshis at Ex.30 has been filed only with an ulterior motive of defeating the interest of the Defendant and hence, Trial Court has rightly rejected the purshis and no error of jurisdiction has been committed in the same and, hence, the present petition requires to be dismissed. He has placed reliance on the case of Pratapbhai V. Trivedi v. Priyavadu @ Ghanu Pratapbhai Trivedi reported in 1992(2) GLH 414.
Taking into consideration the rival contentions of the parties, it is an admitted fact that the present Petitioner-original Plaintiff has filed purshis on 18-3-2010 declaring that he is abandoning his claim of interest. This is only a declaration and, therefore, Court ought not to have passed order on the said declaration i.e. purshis. As no application has been filed by the present Petitioner, there was no question of passing any order below the purshis. It has been held by this Court in AIR 2004 Guj 221 in the case of Nila Bauart Engineering Ltd. v. Rajasthan Urban Infrastructure Project and Ors. as under:
As a rule of prudence and to protect the miscarriage of justice, the Court can expect that such a request is expressed in writing. The withdrawal purshis placed before the Court is only required to be recorded and no formal order on withdrawal purshis is necessary. Formal order treating the plaint as disposed of on account of wish to withdraw the suit, is a formality and that formal order can be passed below the plaint, can be passed at any time by the Presiding Officer of the Court being a mere formality.
This Court totally agrees and it is the right of the Plaintiff to forgo certain claim of the suit at any time. However, the Trial Court ought not to have passed any order on the purshis. Having passed such an order on the pursis, the impugned order requires to be quashed and set aside.
Under the circumstances, order dated 30-3-2010 passed by the learned Civil Judge, Vadodara, below Ex.30 in Special Summary Suit No. 690 of 2009 is quashed and set aside and order is hereby passed below Ex.30 to the effect as "recorded". While deciding the leave to defend application, the Respondent-original Defendant has right to raise all contentions. This petition is accordingly allowed. Rule is made absolute. Direct service is permitted. In view of the above, Civil Application No. 12172 of 2010 stands disposed of.