Writ Petition No.7872 of 2017

6th April, 2018.

Petitioner Counsel: Shri A.S. SHUKLA
Respondent Counsel: Shri S. RAMTEKE

Cases Cited:
State of M.P. and anr. Vs. Pradeep Kumar and anr., (2000) 7 SCC 372 [Para 3,6]
IDBI Trusteeship Services Limited Vs. Hubtown Limited, 2017 ALL SCR 710=(2017) 1 SCC 568 [Para 3]
Madhao s/o Somaji Sarode Vs. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala and ors., 2004(3) Mh.L.J. 1078 [Para 3,6]
Ragho Singh Vs. Mohan Singh and ors., (2001) 9 SCC 717 [Para 4]
Gaurav Singhania Vs. Matrix Agri Science Pvt. Ltd. and ors., 2012(1) ALL MR 129=2011(6) Mh.L.J. 304 [Para 4]

JUDGMENT

JUDGMENT :- Rule.

Heard finally with consent of learned counsel for the parties.

The petitioner who is the defendant in the summary suit filed by the respondent herein is aggrieved by the order passed by the trial Court on the application moved by the petitioner seeking leave to defend the summary suit.

2. The facts in brief are that the respondent has filed suit under provisions of Order XXXVII Rule 2 of the Civil Procedure Code, 1908 (for short, the Code) for recovery of the amount of Rs.7,45,571/. In that suit the petitionerdefendant applied for grant of leave to defend the summary suit. That application was opposed by the plaintiff and the trial Court by the impugned order rejected that application on the ground that it was not moved within a period of ten days from the receipt of summons for judgment. Being aggrieved the said order has been challenged in the present writ petition.

3. Shri A. S. Shukla, learned counsel for the petitioner submitted that the trial Court has refused to grant leave to defend the suit merely on the ground that the application seeking such leave was moved after a period of ten days from receiving the summons for judgment and that the same was not accompanied by an application for condoning that delay. Referring to the provisions of Order XXXVII Rule 3(5) of the Code it was submitted that the power to excuse the delay in applying for leave to defend the suit was conferred on the Court on sufficient cause being shown. The trial Court therefore ought to have granted an opportunity to the defendant to furnish sufficient cause by moving an application for condonation of delay. The leave could not have been refused only on the ground that the application seeking leave to defend had been moved beyond the period of ten days. It was further submitted that an opportunity to have the delay condoned ought to be granted to the defendant and on such explanation being furnished the application seeking leave to defend ought to have been considered. In support of his submissions the learned counsel placed reliance on the decisions in State of M.P. and anr. vs. Pradeep Kumar and anr. (2000) 7 SCC 372, IDBI Trusteeship Services Limited vs. Hubtown Limited (2017) 1 SCC 568 : [2017 ALL SCR 710] and Madhao s/o Somaji Sarode vs. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala and ors. 2004(3) Mh.L.J. 1078.

4. Shri S. Ramteke, learned counsel for the respondentplaintiff opposed the aforesaid submission. According to him as leave to defend was not sought within the period of ten days from the service of the summons for judgment, the trial Court was justified in rejecting the application seeking such leave. He submitted that the application seeking grant of leave to defend was moved after more than a month from the service of the summons for judgment. He placed reliance on the decisions in Ragho Singh vs. Mohan Singh and ors. (2001) 9 SCC 717 and Gaurav Singhania vs. Matrix Agri Science Pvt. Ltd. and ors. 2011(6) Mh.L.J. 304 : [2012(1) ALL MR 129] to urge that in absence of any application for condonation of delay there was no question of the delay being condoned.

5. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. The factual aspects of the matter as regards the service of the summons for judgment and the leave to defend being sought by the defendant after the period of ten days is not in dispute. As per provisions of Order XXXVII Rule 3(3) of the Code (Bombay amendment) the defendant can at any time within ten days from the service of the summons for judgment apply for leave to defend the suit. Under Order XXXVII Rule 3(5) of the Code the Court can on sufficient cause being shown excuse the delay in entering the appearance or in applying for leave to defend the suit under subrule(3) of Rule 3. It is thus clear that the Court has been conferred the power to excuse the delay in applying for leave to defend on sufficient cause being shown. The question is whether the application seeking leave to defend that has been moved after the permissible period of ten days is required to be rejected only on the ground that it has been filed after the statutory period or whether an opportunity ought to be granted to the defendant to apply for such delay being excused.

6. In State of M. P. and anr. (supra) the Honourable Supreme Court considered the consequences of a delayed appeal not being accompanied by an application for condonation of delay. While considering the provisions of Order XLI Rule 3-A of the Code, the Honourable Supreme Court in paragraph 19 observed thus :

"19. The object of enacting Rule 3A in Order XLI of the Code seems to be twofold. First is, to inform the appellant himself who filed a timebarred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemable fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3A Order XLI of the Code."

The learned Single Judge of this Court in Madhao Somaji Sarode (supra) while considering a somewhat similar issue in the context of the provisions of Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 following the aforesaid judgment of the Honourable Supreme Court held that if the appeal filed before the School Tribunal is found to be belated, an opportunity to apply for the delay being condoned ought to be given to the appellant.

7. As noted above the Court has been conferred with the jurisdiction to excuse the delay in seeking leave to defend the summary suit. If it is found that such leave has been sought by the defendant beyond the statutory period of ten days and the application seeking leave to defend the suit is not accompanied by any application for excusing that delay, an opportunity deserves to be granted to the defendant to move an application that would enable the defendant to pray for the delay to be condoned.

8. The decisions relied upon by the learned counsel for the respondent do not assist his submissions while opposing the writ petition. In the present case the impugned order has been passed refusing leave to defend the suit only on the ground that the application seeking such leave was not accompanied by any application for excusing the delay. This in my view was unwarranted.

9. In that view of the matter the following order is passed :

(i) The order passed by the trial Court below Exhibit14 on 10/10/2017 is set aside. The application below Exhibit14 is restored.

(ii) The defendant shall within a period of three weeks from today make an application under provisions of Order XXXVII Rule 3(5) of the Code for the delay to be excused. That application shall be considered on its own merits and in case the trial Court allows that application, the application below Exhibit14 shall be decided on its own merits and in accordance with law.

(iii) Rule is made absolute in aforesaid terms with no order as to costs.

Ordered accordingly.