At, High Court of Andhra Pradesh
By, THE HONOURABLE MR. JUSTICE P. VENKATARAMA REDDY
For the Appearing Parties: Ashok Agarwal, Advocate.
P. VENKATARAMA REDDY, J.
( 1 ) THIS C. R. P. is filed against the order of the III Additional Judge, City Civil court, extending time to file the petition for leave to defend. The petitioner is the plaintiff in a summary-suit filed under Order XXXVIIC. P. C. The respondent entered appearance within time through counsel. Thereafter, the petitioner caused service of summons for Judgment on the respondent-defendant on 6-4-1995, The suit stood posted to 19-4-1995 regarding which the respondent was given intimation in the summons. The contention of the learned Counsel for the petitioner is that the respondent ought to have filed a petition for leave to defend at the latest by 17-4-1995,. e. , within ten days from the date of service of the summons for Judgment. The respondent-defendant having failed to do so and the defendant's counsel having applied for extension of time for filing petition to defend on 19-4-1995. e. on the date of posting of the suit, according to the petitioner's counsel, decree should have been passed in terms of sub- rule (6) (a) of Rule of Order 37. The learned counsel submits that the petition filed on 19-4-1995 for extending the time to file the leave application has no legal basis and it ought to have been ignored by the trial Court and a decree should have been granted. His argument is that without an application for leave to defend, an application for extension cannot be entertained. The decree should have been an automatic consequence on the 11th day if the application for leave to defend had not been filed within 10 days' time.
( 2 ) I find no merit in the contention of the learned counsel. Sub-rule (6) (a) of rule 3 of Order 37 days:" (6) At the hearing of such summons for judgment, (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forth with: "sub-rule (5) rule 3 enjoins that the defendant may, at any time within ten days from the service of such summons for judgment, apply for leave to defend such suit by filing an affidavit or otherwise disclosing the material facts,
( 3 ) IN advancing the above argument, the learned counsel has over looked sub-rule (7) which empowers the Court to excuse the delay in entering appearance or in applying for leave to defend the suit, for sufficient cause shown by the defendant. In the present case, the defendant had already entered appearance. There was delay in filing application for leave to defend. The Court has power to excuse the delay. There is no warrant to place a limited interpretation on sub-rule (7) to the effect that only in a case where the application to excuse the delay is accompanied by the application for leave to defend the suit that the Court gets power to condone the delay. Such interpretation would be too technical and may defeat the object of sub-rule (7 ). The matter may be looked at from another angle. Sub-rule (6) says that the plaintiff shall been titled to judgment forth with if the defendant had not applied for leave on the date of hearing. If, as in this case, the suit was posted on a day beyond ten days, it is not possible to give judgment on the 11th day as contended by the learned counsel for the petitioner. By the date the suit came up for hearing, the application for granting extension of time was filed and the time was extended and within the extended date, admittedly, the application was in f
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act filed by the defendant. In these circumstances, I am of the view that sub-Rule (7) goes to the rescue of the defendant and the Court cannot be said to have acted without jurisdiction in extending the time for filing the application for leave instead of straightaway passing the decree. I see no grounds to admit the CR. P. ( 4 ) THE C. R. P. is accordingly dismissed.