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2011 DIGILAW 1556 (CAL)

Mantu Pramanick v. Indrani Bhattacharjee

2011-12-23

DIPANKAR DATTA

body2011
JUDGMENT 1. Money Suit No. 19 of 2009 instituted by the opposite party (hereafter the plaintiff) against the petitioner (hereafter the defendant) under provisions contained in Order XXXVII, Civil Procedure Code, is pending on the file of the learned Civil Judge (Senior Division), 2nd Court, Howrah. She has sought for recovery of a sum of Rs.5.74 lakh plus interest. 2. The defendant entered appearance in the suit on October 26, 2009. According to him, the learned advocate conducting the case on his behalf in the trial Court advised him to pray for time to file written statement by way of defence, overlooking the provisions contained in Rule 3 of Order XXXVII of the Code. 3. On his prayer, December 2, 2009 was fixed as the date for filing written statement. The defendant prayed for further time, which was granted and on February 2, 2010 he filed his defence by way of a written statement. The plaintiff objected to acceptance of the same, whereafter the defendant on June 19, 2010 filed an application under Rule 3(7) of Order XXXVII of the Code read with Section 151 thereof praying for condonation of delay alleging wrong and/or mistaken advice of the learned advocate as the reason for the delay. 4. The learned Judge of the trial Court by his order dated May 28, 2011 rejected the application of the defendant dated June 19, 2010 on contest. Consequently, the defence of the defendant was struck off. The learned Judge was of the view that in terms of the provisions contained in Order XXXVII, the defendant is under an obligation to file his defence within the statutory period of 10 days and, therefore, the bar contained in Rule 3(5) of Order XXXVII of the Code was attracted. 5. The order dated May 28, 2011 is the subject matter of challenge in the present revisional application under Article 227of the Constitution. 6. Having heard learned advocates for the parties and on perusal of the materials on record, I am of the considered view that this application deserves to be allowed. 7. Certain facts are not in dispute. The defendant entered appearance before the trial Court on October 26, 2009 and had prayed for time to file written statement by filing a petition, which was allowed fixing December 2, 2009 for filing written statement. 7. Certain facts are not in dispute. The defendant entered appearance before the trial Court on October 26, 2009 and had prayed for time to file written statement by filing a petition, which was allowed fixing December 2, 2009 for filing written statement. The defendant did not file his written statement on that date; instead, he prayed for further time and the learned Judge was pleased to grant his prayer fixing February 2, 2010 for filing his written statement. When the defendant filed his written statement on February 2, 2010, objection was raised by the learned advocate for the plaintiff that the time to apply for leave to defend having long expired, the Court was not empowered to accept the written statement of the defendant. The learned Judge followed the decision of the Rajasthan High Court reported in AIR 1989 Rajasthan 132 wherein the expression “within ten days from service of summons” came up for consideration and it was held that “within ten days” means a period less than ten days or at most the tenth day and not beyond, and passed the impugned order. 8. The learned Judge appears to have clearly overlooked the provisions in Rule 3(7) of Order XXXVII, which empowers the Court to excuse the delay of the defendant in applying for leave to defend the suit provided sufficient cause is shown by him. No consideration appears to have been bestowed on the aspect as to whether the defendant had indeed shown cause that could be considered sufficient. 9. Significantly, it also does not appear from the materials on record as to whether summons for judgment in such form, as referred to in Rule 3(4) of Order XXXVII containing the requisite particulars, were served on the defendant or not. Although the summons received by the defendant in High Court Form No. (P7) under Order XXXVII Rule 2 conveyed to him that after an appearance is entered by him the plaintiff would serve a summons for judgment at the hearing enabling him to move the Court for leave to defend the suit, it has not been brought to my notice that summons for judgment, as referred to in Rule 3(4) of Order XXXVII was at all served on the defendant or not. The impugned order does not refer to service of summons under Rule 3(4) but the learned Judge proceeded on the view that since the defendant did not file his application for leave to defend within ten days from October 26, 2009, he had forfeited his right. The learned Judge overlooked that the period of ten days for applying for leave to defend as stipulated in Rule 3(5) would have to be reckoned from the date of service of summons under Rule 3(4) and not from the date of appearance. 10. I hold that the decision of the Rajasthan High Court referred to above had no application, on facts and in the circumstances, and ought not to have been made the basis for rejection of the defendant’s prayer, oblivious of the other requirements of Rule 3 and in particular sub-rule (7), which empowers the Court to execute delay on sufficient cause being shown. 11. For the reasons aforesaid, the order impugned cannot be sustained. It is set aside. The learned Judge is requested to proceed afresh according to law and decide whether the defence of the petitioner merits acceptance or not. Photostat certified copy of this judgment and order may be furnished to the applicant at an early date.