1. The petitioner impugns the order of the trial sub-Judge dated 24th Aug., 1982 whereby he declined to pass a decree in his favour in a suit under O.37 of the civil P. C. (for short, the code) in spite of the noncompliance of the provisions of R. 3 (5) by the defendant-respondent. The undisputed facts are as follows:
2. The suit was filed on l8th Dec., 1981 for the recovery of Rs. 7,826/- (Rs. 7.000/- as principal and the remaining amount as interest) on the basis of a Hundi alleged to have been executed by the-defendant on 22nd. June, 1981. The defendant was served with a notice, as prescribed in Form 4,-Appendix B-to the Cope on 8th Jan. 1982, for appearance on 20th Mar., 1982. In response to this notice, the respondent put in appearance on 16th Jan., 1982 and filed an application stating. therein that. he Reenters appearance and wants to defend the claim of the plaintiff...... The defendant has not been sent a copy of the plaint or the annexures thereto'. A registered notice in terms of sub-rule (3) of R. 3 was also sent by him to the plaintiff. On the date of appearance (20th March, 1982), as per the summons served upon him, his counsel Shri S. R. Wadhera put in appearance. The written statement on his behalf, however, was filed on 22nd March, 1982. On that date, the trial court passed the following order:--
Present: Counsel for the parties.
Written statement filed. Copy given to Shri M. L. Gupta Advocate. Objected to the filing of the written statement on the ground that defendant has not filed an application for leave to defend. He wants to move an application. For replication and application,. to come up on 21st April, 1982.
On 3rd April, 1982, the respondent filed an application for the grant of leave to defend the suit with the assertion that the summons served on him did not fulfill the requirements of O. 37, R. 3 (4).of the Code. Before this application filed by the respondent could be disposed of, the petitioner filed an application on 12th April, 1982, contending therein that since the defendant-respondent had put in appearance and he (plaintiff) had already served on him summons in Form 4-A, Appendix B in terms of R. 3 (4) on 1lth March, 1982 and no leave having been granted to the defendant within ten days to defend the suit, he is entitled to a judgment and decree as prayed for in the suit. The respondent filed reply to. this application on 22nd July, 1982, pleading therein that though R. 3 (3) required him to seek permission of the Court to defend the suit yet he had already filed an application on 3rd April, 1982 for the grant of that permission. It was also, pleaded that even otherwise this permission should he taken to have been impliedly. granted as he was permitted to file the written statement. It was also made out in this reply that the court had ample power to extend the time or excuse the delay in applying for leave to defend the suit It is this application of the plaintiff-petitioner dated 12th April, 1982 which has been declined vide impugned order This is how the trial count has concluded the impugned order:
I hold that the permission to defend the suit has been granted impliedly.......'and, thus, held that the suit was not liable to he decreed.
3. Now it is forcefully contended by Shri H. L. Sarin, the learned Senior Advocate for the petitioner, that neither the respondent-defendant had sought the permission or leave of the Court in terms of sub-rule (5) to defend the suit nor did he make any such prayer with-in the stipulated period of 10 days from the date of the service of the summons in Form 44 of Appendix B. In the face of these established facts the trial court has gone entirely wrong in holding that there has been an implied per-mission to the defendant to defend the suit. According to Mr. Sarin, this 'implied permission' is not only unknown to the Code but is also derogatory to the language of sub-rule (5) of R. 3. This sub-rule (5) reads as follows.--
'The defendant may, at any time with-in ten days from the service of such summons for judgment, by affidavit or, otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.
Mr. Sarin maintains that mere filing of d written statement by the defendant does not amount to the disclosing of facts which entitle him to defend the suit or cannot be taken as an application for leave to defend the suit. According to the learned counsel, this is more so when a specific objection was raised on behalf of the plaintiff on 22nd March, 1982, to the filing of the written statement by the defendant in the absence of any prior permission. As against this, the firm stand of Shri Jhanji, the learned counsel for the respondent, is that all that has been prescribed in R. 3. O. 37 is only procedural and non-compliance of any particular sub-rule cannot defeat the ends of justice. According to the learned counsel. from the factum of the filing of the written statement by the defendant, the lower court has rightly concluded that it had impliedly granted the permission to defend the suit. 1, however, find it difficult to sustain the stand of Mr. Jhanji. It may be pointed out here and now that the learned counsel is not in a position to refer to any precedent in support of his argument. Otherwise also I find that it the proposition as advanced by him is accepted then the wording of this sub-rule to the effect that the defendant has to apply within ten. days from the service of summons on him in Form 4-A of Appendix B disclosing such facts as may be deemed sufficient to entitle him to defend the suit and to obtain the leave of the Court in that regard are rendered completely. nugatory. No doubt, the phraseology of the first proviso to this sub-rule indicates that normally permission shall not be refused unless the Court is satisfied from the facts disclosed by the defendant that he has either no substantial defence to raise or the in-tended defence is simply frivolous or vexatious but it does not imply that no specific permission has to be sought or granted by the Court for defending the suit. I hardly need dilate on the well laid down principle which Mr. Jhanji highlights that rules of procedure are designed to facilitate justice and further its ends and cannot possibly be taken as, penal enactment or punishment or penalties. These are not designed to trip people up. But all this does not mean that the clear-cut language of such rules or their intendment has to be given a go-bye. The provisions of sub-rule (5) do envisage the exercise of a judicial discretion by the trial court. Some of the principles applicable to the exercise of this discretion have been. enumerated by the Supreme Court in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation AIR 1977 SC 577. No doubt, in this case the Supreme Court was primarily concerned with E. 3 prior to its amendment by Act 104 of 1976 but nonetheless these principles are fully applicable to the language of the present rule. To my mind, this theory of implied permission is completely derogatory to the provisions of R. 3, O. 37 of the Code.
4. Mr. Jhanji. however, next con-tends that since as a matter of fact a written statement has already been filed on behalf of the defendant within ten days (taking into account the fact that 21st of March 1982 was a Sunday) of the service of summons on him in Form 4-A, Appendix B and a prayer on his behalf had been made in his reply dated 22nd July, 1982 to the application dated 12th April, 1982. filed on behalf of the plaintiff-petitioner, the Court should have extended the time or excused the delay in entering appearance on his behalf and in applying for leave to defend the suit in terms of sub-rule (7) of R. 3. The trial court undisputably has not examined or pronounced upon this aspect of the matter. In the light of that I also refrain from expressing himself in this regard at this stage.
5. Thus, in the light of the above discussion I allow this petition and while setting aside the impugned order send the case back to the trial court to dispose of the matter afresh in accordance with law and the observations made above. 1. however, pass no order as to coats.
6. The parties through their counsel are directed to put In appearance before the trial court on 9th May, 1983. Re-cords of the can he also despatched at the earliest
7. Petition allowed.