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2005 DIGILAW 333 (AP)

Panduga Veera Reddy v. Bandaru Damodar Reddy

2005-04-07

L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) THE 1st respondent filed O. S. No. 13 of 2002, against the petitioner and the 2nd respondent, for recovery of a sum of rs. 1,26,000/- in the Court of Senior Civil judge, Nagarkurnool. He invoked the procedure under Order 37 C. P. C. ( 2 ) PETITIONER received summons in the suit. In the summons received by the petitioner it was indicated that he shall appear before the Court on 3-7-2002. Petitioner received the summons on 19-6-2002. He entered appearance before the trial Court on 3-7-2002. However, on realizing that the appearance ought to have been entered within ten days from the date of service of summons, he filed I. A. No. 372 of 2002, for condonation of delay of about five days. ( 3 ) PETITIONER filed I. A. No. 394 of 2002, seeking permission to defend the suit and to file a written statement. The trial Court rejected the application through its order dated 28-9-2004, on taking the view that the petitioner did not comply with the mandatory provisions of Order 37 Rule 3 of C. P. C. (since no other Order of C. P. C. , is referred to in this judgment, reference to Rules shall be treated as the one to those in Order 37) and that an application filed under Rule 5 (sic. sub-rule (5)) thereof, after expiry of ten days, cannot be considered at all. The same is challenged in this C. R. P. ( 4 ) SRI B. Narasimha Sarma, learned counsel for the petitioner submits that the petitioner entered appearance as required under Rule 3 together with I. A. No. 372 of 2002, for condonation of delay of five days, and in fact the same was ordered by the trial court on 26-2-2003. He contends that once there existed sufficient compliance with rule 3, the trial Court ought to have considered I. A. No. 394 of 2002 filed under sub-rule (5) thereof within 10 days from the date on which the 1st respondent served "summons for judgment". He contends that once there existed sufficient compliance with rule 3, the trial Court ought to have considered I. A. No. 394 of 2002 filed under sub-rule (5) thereof within 10 days from the date on which the 1st respondent served "summons for judgment". ( 5 ) SRI K. Mahipathi Rao, learned counsel for the 1 st respondent, on the other hand, submits that different sets of time frame are stipulated under the various rules, and that the condonation of delay, with reference to compliance with Rule 3 (1) does not enure to the benefit of the petitioner, for the compliance under Rule 3 (5 ). He submits that no interference is called for with the order under revision. ( 6 ) ORDER 37 C. P. C. , prescribes a speedier and summary procedure for disposal of the suits of certain category. It prescribes definite time frame, for the response of the defendants, at various stages, by providing for consequences, that shall flow from noncompliance with the same. Sub-rule (1) of rule 3 mandates that the defendant shall enter appearance within ten days from the date of service of summons. The second time frame is in relation to submission of application by a defendant seeking leave to defend such suit. Such applications are required to be filed under sub-rule (5) of rule 3 within ten days, from the date on which the plaintiff serves "summons for judgment", in Form No. 4-A, on the defendant. Sub-rule (7) of Rule 3 empowers the Court to excuse the delay in entering appearance under sub-rule (3), or in applying for leave, to defend, under subrule (5 ). It reads as under:"o. XXXVII R. 3 (7): The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. " ( 7 ) IN the instant case, the petitioner was served with summons in the suit on 19-6-2002. He was under obligation to enter appearance on or before 29-6-2002. Either because it was indicated in the summons that the appearance has to be made on 3-7-2002, or on account of other factors, the petitioner did not comply with sub-rule (1) of rule 3. He entered appearance only on 3-7-2002. He was under obligation to enter appearance on or before 29-6-2002. Either because it was indicated in the summons that the appearance has to be made on 3-7-2002, or on account of other factors, the petitioner did not comply with sub-rule (1) of rule 3. He entered appearance only on 3-7-2002. On realizing that there was delay in entering appearance, he filed I. A. No. 372 of 2002, to excuse the delay of about 5 days in entering appearance. The I. A. was allowed on 26-2-2003. ( 8 ) ONCE the defendant, in such a suit, enters appearance, the obligation rests upon the plaintiff, to take out summons for judgment under sub-rule (4) of Rule 3. The 1st respondent has taken out such summons and served it on the petitioner on 3-7-2002. The petitioner has ten days time to file an application, seeking leave of the court, to defend the suit. The tenth day is said to have fallen on (second) Saturday, and it was followed by another holiday, being sunday. On the next working day, i. e. , on 15-7-2002, the petitioner filed I. A. No. 394 of 2002, seeking leave to defend the suit. He stated various reasons and pleaded that the suit cannot be disposed of, summarily, and that there exist triable issues. The trial Court dismissed the I. A. , on the ground that it was not filed within the stipulated time, and that no application was filed to excuse the delay. ( 9 ) FROM a reading of the order under revision, this Court is of the view that the trial court committed an error in computing the time for filing application under Rule 3 (5), from the date of service of summons. It failed to notice the distinction between the date of service of summons, under sub-rule (1) of rule 3, on the one hand, and the date of service of "summons for judgment", under sub-rule (4), on the other hand. While the former obligates the defendant to enter appearance within ten days, the latter gives an option to him, to file application to defend the suit, as provided for under sub-rule (5 ). It is not in dispute that the petitioner complied with the first stage requirement, viz. , entering appearance by filing an application, to excuse the delay. While the former obligates the defendant to enter appearance within ten days, the latter gives an option to him, to file application to defend the suit, as provided for under sub-rule (5 ). It is not in dispute that the petitioner complied with the first stage requirement, viz. , entering appearance by filing an application, to excuse the delay. It is also a matter of record that the 1 st respondent served "summons tor judgment" on the defendant only on 3-7-2002. The application, seeking permission to defend the suit, was filed by the petitioner on the next working day, occurring after the ninth day. The trial Court took the view that the application ought to have been filed within ten days from 19-6-2002, i. e. , the date on which the summons in the suit were filed. It ignored that the "summons for judgment" were served on the petitioner only on 3-7-2002. Therefore, the order under revision cannot be sustained. The same is accordingly set aside. ( 10 ) AS in many cases, the effort of the 1 st respondent to get an early adjudication has resulted in a further delay. The trial Court shall take up the I. A. No. 394 of 2002, on merits, and proceed with the matter in accordance with law. The suit shall be disposed of within a period, not exceeding three months, from the date of receipt of copy of this judgment. ( 11 ) ACCORDINGLY, the C. R. P. is allowed. There shall be no order as to costs.