- (1.)An interesting legal issue has arisen in this appeal touching upon the provisions contained in Order VII of Madras High Court Original Side Rules. As it is also imperative to analyse the facts, both the issues governing law and fact are discussed here under.
(2.)Background facts:
2.1. A summary suit was filed by the plaintiff under Order VII Rule 1 of the Original Side Rules, read with Order XXXVII Rule 1 of Civil Procedure Code towards the recovery of a sum of Rs.1,84,58,710/- along with the interest.

2.2. The plaintiff has been running the business of supplying film shooting equipments. There was an agreement between the plaintiff and the defendant. The plaintiff's case is that supplies have been made to the defendant. The plaintiff maintained a running account in the name of the defendant. The defendant paid a sum of Rs.30,00,000/- (Rupees thirty lakhs only) on 07.05.2007, which was duly credited to his account. Thereafter, further services of the plaintiff were availed. A subsequent payment of Rs.5,00,000/- (Rupees five lakhs only) was made on 01.10.2007, which was also credited to his account.

2.3. It is the further case of the plaintiff that after the settlement of accounts, it was agreed between the parties that a sum of Rs.1,50,00,000/- has to be paid by the defendant towards the full and final settlement of the dues. In discharge of the liability, three cheques have been issued for a sum of Rs.50,00,000/- each by the defendant on 25.12.2009, 04.01.2010 and 31.07.2010 respectively. It was also agreed between the parties that no interest would be charged for the interregnum period. The cheques issued by the defendant got dishonoured. The defendant issued 'stop payment' instruction to the bank. As the liability was on the cheques, a suit was duly laid as a summary suit.

2.4. Pending suit, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Civil Procedure Code seeking an order of injunction restraining the defendant from releasing, executing and exploiting the Telugu picture "KOMARAM PULI" produced by the defendant. On 25.08.2011, after directing the defendant to execute the bank guarantee for the suit amount, the learned single Judge passed the following order.

" This Court passed an order in O.A.No.956 of 2010 on 07.09.2010. At the instance of the learned counsel appearing for the plaintiff/applicant, this application has been posted before me once again "for being mentioned".

2. I have heard the learned counsel appearing for the plaintiff/applicant and the learned counsel appearing for the respondent. I have also gone through the documents including the order passed by this Court on 07.09.2010.

3. In this application, an order was passed on 07.09.2010 by me and the operative portion of the order is extracted below:

"4. In the mean time, to secure the interest of the plaintiff, the defendant shall execute a Bank Guarantee for the suit claim of Rs.1,04,58,710/- in favour of the Registrar General, High Court, Madras, immediately. It is also further undertaken to this Court by the learned counsel appearing on behalf of the respondent/defendant that in the event of some delay in executing the bank Guarantee, the picture shall not be released without executing the Bank Guarantee as stated above and an endorsement has also been made to that effect by the learned counsel for the respondent/defendant in application No.4972 of 2010. The respondent/defendant is present before this Court and he has also signed in the endorsement made by the learned counsel for the respondent/defendant.

5. On such execution of the Bank Guarantee, the learned counsel may make a mention before this Court and thereafter post the matter for further orders to be passed. Since the suit is filed under Order 37 Rule 1 of C.P.C., the Registry may expedite the suit and post it for trial, if need be, on or before 19th January, 2011."

4. In view of the order passed in paragraph-5 as mentioned above, it is submitted that the defendant is taking a stand that this Court has directed the suit to be posted for trial and therefore, the suit has been already converted from summary suit to an ordinary suit.

5. As this was sought to be resisted by the plaintiff, the matter was posted before me "for being mentioned", at the instance of the learned counsel appearing for the plaintiff, to clarify paragraph-5 of the order dated 07.09.2010.

6.After hearing, the learned counsel appearing on either side, I am of the considered view that there is no scope for any clarification, as in paragraph-5 it has been clearly stated that the suit is filed under Order 37 Rule 1 of C.P.C., and only when the necessity arises it may be posted for trial. A summary suit will be posted for trial only when the defendant comes to Court with a triable issue and gets leave of the Court to defend the suit conditionally or unconditionally . At the time of passing the order, this Court has not gone into the question of triable issues and to grant leave to defend the suit either conditionally or unconditionally. Therefore, it is very clear that only when the defendant comes with the triable issues, the suit may be posted for trial, after getting leave to defend the suit. Without doing so, it is not open to the defendant to interpret and to contend that this Court has already granted leave to defend the suit, which is not correct.

7. My order to put the suit for trial is subject to complying with the provisions of Order 37 of C.P.C., and therefore, I reiterate that no leave has been granted, after finding that there is a triable issue. It is open to the defendant to take out necessary steps under Order 37 Rule 1 of C.P.C., or any other remedy available under law.

8. Since the defendant has now taken out an application in A.No.1629 of 2011 under Order 7 Rule 7 of Original Side Rules to that this suit as an ordinary suit, arguments will have to be heard on this application. It is submitted that the counter has been filed by the learned counsel appearing for the plaintiff/respondent in this application.

9. Hence, post this application before the regular Court for hearing."

2.5. An application was filed by the defendant under Order VII Rule 7 of the Original Side Rules before the Court raising the grounds available under Order VII Rule 6 of the Original Side Rules which deals with an application seeking leave to defend. The said application was dismissed by the learned single Judge mainly on two grounds. The first ground is that the appellant ought to have filed an application under Order VII Rule 6 of the Original Side Rules, even though the application filed before the Court instead of Master is maintainable under certain contingencies. The second ground was on merit that the averments made in the affidavit are not sufficient enough for the Court to allow the application, thereby treating the suit as an ordinary suit. Challenge is made to the said order before us by the appellant.

(3.)Submissions of the appellant:
Shri. Parthasarathy, learned counsel appearing for the appellant, would contend that the provisions contained in Order VII Rule 6 of the Original Side Rules and Order VII Rule 7 of the Original Side Rules are different and distinct covering the same scope. Notwithstanding the provision contained in Order VII Rule 6 of the Original Side Rules, the application under Order VII Rule 7 of the Original Side Rules is maintainable. The grounds available be raised under Order VII Rule 6 of the Original Side Rules can also be raised in an application made under Order VII Rule 7 of the Original Side Rules. Order VII Rule 7 of the Original Side Rules provides exclusive power to the Court. The other provision contained under Order VII are subject to Rule 7 and therefore, the application is maintainable. It is not necessary that the defendant will have to exhaust his remedy under Order VII Rule 6 of the Original Side Rules and thereafter, seek a further relief under Order VII Rule 7 of the Original Side Rules. While construing the provisions, the principle of harmonious construction will have to be adopted. The averments made in the affidavit filed in support of the petition would show that triable issues are involved. The appellant has shown his bona fides by depositing a portion of the decree amount. The learned counsel also made a belated attempt stating that the appellant did file an application under Order VII Rule 6 of the Original Side Rules earlier to the application filed under Order VII Rule 7 of the Original Side Rules but unfortunately did not represent the same. Therefore, liberty may be given to proceed with the same in the event of this Court not agreeing with the contentions on merit. In support of his contentions, the learned counsel has made reliance upon the following judgments:

(i) UNION OF INDIA V. BRIGADIER P.S. GILL, 2012 4 SCC 463;

(ii) IRIDIUM INDIA TELECOM LTD., V. MOTOROL INC., 2005 2 SCC 145;

(iii) D.GOPALAN V. RAGHAVA NAICKER AND OTHERS, 1990 1 LW 15;

(iv) SREYAS SRIPAL AND ANOTHER V. UPASANA FINANCE LTD., 2007 4 CTC 161;

(v) SHAH BABULAL KHIMJI V. JAYABEN D. KANIA AND ANOTHER, 1981 4 SCC 8;

(vi) MECHELEC ENGINEERS AND MANUFACTURERS V. BASIC EQUIPMENT CORPORATION, 1976 4 SCC 687; and

(vii) MURAHARI RAO V. BAPAYYA,1962 LW 316.