S.K. Mal Lodha, J.
1. This is a defendant's revision under Section 115 of the Code of Civil Procedure against the order dated July 25, 1980 of the District Judge, Bhilwara passed in Civil Original Suit No. 6 of 1980.
2. A few facts leading to this revision may be noted, The plaintiff non-petitioner instituted a suit for Rs. 14,980/- on the basis of two pro-notes, which are said to have been executed by the defendant-petitioner. The suit appears to have been filed under Order XXXVII, Rule 2, C.P.C. The summons dated January 28, 1980 was issued and served on the defendant-petitioner on January 29, 1980. On the to of the summons TARIKH PESHI mentioned was March 7, 1980. The defendant went to engage a counsel for appearing in court for March 7, 1980. After seeing the summons, the counsel told him that he should have appeared with in 10 days of the service of the summons. The defendant appeared in Court on March 7, 1980, and submitted an application under Order XXXVII, Rule 3(7), C.P.C. stating the cause for not appearing within 10 days from the date of service of the summons and prayed for excusing the delay caused in entering appearance in Court. The reason that was mentioned in the application was that the defendant was misled by the date which was mentioned on the top of the summons as March 7, 1980. This he took to be the date on which he was required to appear in Court. The plaintiff non-petitioner opposed the application. The learned District Judge. Bhilwara by his order dated July 25, 1980 dismissed the application of the defendant-petitioner holding that there was no sufficient cause for condoning the delay under Order XXXVII, Rule 3(7), C.P.C. Feeling aggrieved, the defendant has come up in revision to this Court under Section 115 of the Code of Civil Procedure.
3. A show cause notice was issued to the plaintiff-defendant. In pursuance of that Mr. J.S. Saluja, has appeared on behalf of the non-petitioner.
4. I have heard Mr. D.S. Shishodia, learned Counsel for the petitioner and Mr. J.S. Sa1uja, learned Counsel for the non-petitioner. It was stated by both the learned Counsel appearing for the parties that the revision petition may finally be disposed of and this court while issuing show cause notice specifically mentioned that 'why this revision petition be not admitted and allowed.'
5. Learned Counsel appearing for the petitioner contended that the next date fixed for appearance in the court was March 7, 1980 which was mentioned on the top of the summons dated January 28, 1980 which was served on January 29, 1980, misled him and it constituted sufficient cause for condoning the delay. He further submitted that the order under revision if allowed to stand would occasion a failure of justice and, therefore, it should be interfered with. On the other hand, learned Counsel appearing for the non-petitioner argued that the cause which has been relied on by the defendant is not a sufficient one for condoning the delay and that there are no grounds for interfering with the order under revision at this stage.
6. I have considered the rival contentions of the learned Counsel appearing for the parties.
7. The provisions of O. XXXVTI. Rule 2, C.P.C. as then existed came up for consideration before a learned single Judge of the Madras High Court in A bdul Rahim v. A bdul Selam AIR 1949 Madras 742. It was observed as follows:
It is true that there is no specific provision in O. XXXVII, Rule 2 or in the Limitation Act empowering a Court to condone a delay in appearance beyond the ten days prescribed by the summons in form No. 4. Technicality can be met with technicality, because the default recited in this summons for non-appearance within ten days is that the plaintiff will be entitled after the expiration of this period to obtain a decree with costs. It is common ground that no decree was passed by the court when the defendant filed his application for leave to defend on the 1 lth day. Furthermore, under O. XXXVII, Rule 4 even after decree the Court may, under special circumstances, set aside and give leave to the defendant to defend the suit on terms it thinks fit. A fortieri if the Court has passed no decrees, it clearly has ample discretion to give the defendant such leave, notwithstanding the fact that he has not appeared within ten days of the service of the summons on him in form No. 4, App. D.
Abdul Rahim's case AIR 1949 Madras 742 was followed in Srinivasan v. Bhakhavatsalu AIR 1953 Mfdrrs 909, which was rendered under the provisions of O. XXXVII, Rule 3, C.P.C. which then existed and it was held as under:
In the present case there are ample reasons for the defendants being misled because the summons clearly stated that the hearing was on 22-3-1951. Though in the typed body of the notice it was stated that leave to defend shoald be obtained within ten days, the insertion in manuscript as a separate paragraph in the summons that the hearing would be on 22-3-1951 is certainly likely to mislead the d^fendan's 'Actus curise cairum gravabit', (An act of Court shall prejudice no men). Acts of mistake at the hands of Court should not prejudice a suitor and as such I am inclined to agree with Black J. that the Court ought to have, before passing the decree, granted leave to defend. Article 159, Limitation Act can be construed only as prescribing the period of ten days when the summons does not specifically fix a date for the hearing in such circumstances one cannot say definitely that the period of ten days fixed under Article 159, Limitation Act is an inflexible one. I am, therefore, inclined to agree with Black J. and hold that 'un debits justifies' leave to defend ought to have been granted.
8. In Karan Singh v. Chahal Finance Pvt. Ltd. 1968 PLR (Delhi Section) 329 the provisions of O. XXXVII, Rule 3, C.P.C. as existing then were examined by the Punjab High Court. By Punjab amendment Sub-rule (3) to Rule 3 of O. XXXVII of the Code of Civil Procedure was added according to which the provisions of Section 5 of the Indian Limitation Act, were made applicable to applications for leave to appear and defend the suits under Sub-rule (1) of Rule 1 of O. XXXVII of the Code. The question that arose was whether there was sufficient cause for the two appellants in those cases to have put in on application on January 30, 1964 instead of putting the same before January 23, 1964 that is, within ten days of the saving of the notice. The appellants came to Delhi and put the papers in the hands of their counsel on January 29, 1964 and put in appearance on January 30, 1964. On the summons at the top the words 'Hearing on January 30, 1964' were prominently written. The contention of the appellants was that they were misled by this writing to believe that they were requested to appear only on January 30, 1964. In these facts, the Division Bench of the Punjab High Court opined as under:
that where the defendant was misted by writing of a particular date on the top of the notice and did apply in time for leave to defend the suit, it was sufficient reason to extend time for applying for the grant of such permissions.
Sub-rule (v) of Rule 3 of Order XXXVII reads as under:
(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.
According to this, the Court or Judge has been empowered on sufficient cause being shown by the defendant, to excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. The writing of 'TARIKH PESHI March 7, 1980 on the top of the summons was certainly likely to mislead the defendant. There is a maxim 'actus cursie serinum gravabit'. According to it an act of court shall prejudice no man. The circumstances of the case in hand clearly show that the defendant was infact misled by the writing of the 'TARIKH PESHI March 7, 1980 and he was prevented from not applying within 10 days from the date of the service of the summons for leave to defend the suit. This, in my opinion constituted sufficient cause within the meaning of Sub-rule (7) of Rule 3 of O. XXXVII, . The decisions delivered in Srinivasan v. Bhakthavatsalu AIR 1953 Mfdrrs 909 and Karan Singh v. Chahal Finance Pvt. Ltd. 1968 PLR (Delhi Section) 329 are nearer home. Respectfully) following the principles laid down therein, I am of opinion that the learned District Judge has exercised his jurisdiction illegally or at any rate with material irregularity when he declined to condone the delay of the defendant in entering appearance.
9. The order under revision of the learned District Judge, in my opinion, would occasion a failure of justice if it is allowed to stand and, therefore, calls for interference by this court. I may also state that Abdul Rahim's case AIR 1949 Madras 742 and Srinivasan's case AIR 1953 Mfdrrs 909, were cases of revision.
10. For the reasons mentioned above, the revision petition is allowed and the order dated July 25, 1980 of the learned District Judge Bhilwara is set aside and the delay caused in entering appearance by the defendant in pursuance of the summons under O. XXXVII, Rule 2, C.P.C. is condoned. The learned District Judge shall take further proceedings in accordance with law. In the circumstances of the case, there will be no order as to costs.