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M.A. Ethirajulu Naidu Vs. T.K.C.K. Panikkar - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1147 of 1955
Judge
Reported inAIR1957Mad752; (1957)1MLJ131
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rules 2, 3 and 4
AppellantM.A. Ethirajulu Naidu
RespondentT.K.C.K. Panikkar
Appellant AdvocateK.C. Jacob and ;S.K.L. Ratan, Advs.
Respondent AdvocateV. Venkataswami and ;S.B. Mani, Advs.
DispositionRevision dismissed
Cases ReferredJames Manickam v. Jayanarayana Daga
Excerpt:
.....summary procedure--application to set aside ex parte decree along with application for grant of leave to defend by defendant--ex parte decree set aside--whether court has power to excuse delay after period of ten days and grant leave to defend ; the terms of order xxxvii, rule 4, civil procedure code (act v of 1908), are not ambiguous and under the said rule after a decree is passed the court has power, under special circumstances, to set aside the same and give leave to the defendant to defend the suit. the discretion vested in the court is no doubt judicial. though a court has no power to extend the period of ten days prescribed by article 159 of the indian limitation act (ix of 1908), within which an application for leave to defend the suit under order xxxvii, rule 3, civil..........in the suit he instructed an advocate to appear on his behalf in order that he might obtain leave to defend the suit. the petition for leave to defend was not immediately filed notwithstanding the adjournment of the suit twice to enable this to be done. thereupon the suit was decreed ex parte on 20-9-1954.2. the next proceeding in the suit was an application by the defendant i. a. no. 1100 of 1954 for setting aside the ex parte decree along with an application i. a. no. 1102 of 1954 for the grant of leave to defend the suit. in the common affidavit in support of these petitions, the defendant stated that he was unable to appear in court on 20-9-1954 and file the application for leave to defend the suit because of his illness and an ex parte decree was passed on that date because.....
Judgment:
1. This is a petition, to revise the order passed in I. A. No; 1102 of 1954 in O. S, No, 603 of 1954 on the file of the City Civil Court, Madras. O. S. No. 603 of 1954 was a suit filed under the summary procedure prescribed under O. 37 of the C. P. Code on foot of a promissory note executed by the defendant in favour of the plaintiff. When the defendant was served with notice of summons in the suit he instructed an advocate to appear on his behalf in order that he might obtain leave to defend the suit. The petition for leave to defend was not immediately filed notwithstanding the adjournment of the suit twice to enable this to be done. Thereupon the suit was decreed ex parte on 20-9-1954.

2. The next proceeding in the suit was an application by the defendant I. A. No. 1100 of 1954 for setting aside the ex parte decree along with an application I. A. No. 1102 of 1954 for the grant of leave to defend the suit. In the common affidavit in support of these petitions, the defendant stated that he was unable to appear in court on 20-9-1954 and file the application for leave to defend the suit because of his illness and an ex parte decree was passed on that date because of the refusal of the court to adjourn the suit to another date. On this ground he stated that he was prevented by unavoidable reasons from filing the petition for leave to defend the suit by 20-9-1954. He then set out the details of his defence to the action and prayed for setting aside the ex parte decree and, granting leave to defend the suit. Besides, controverting the facts the legal objection raised to the grant of the prayers in I. A. No. 1102 of 1954 was that the application was barred under Art. 159 of the Limitation Act. The learned City Civil Court judge held that there was sufficient cause for the non-appearance of the defendant on 20-9-1954 and set aside the ex parte decree by order dated 2-9-1955. No revision is preferred against this order which has become final.

The court then proceeded to consider I. A. No. 1102 of 1954 and overruling the objection on the ground of limitation granted the defendant leave to defend the suit. The jurisdiction of the court to make this order is challenged in this revision petition.

3. Order 37 C. P. C. provides for a summary procedure in suits on negotiable instruments by reason of which When a suit is filed under this chapter the facts stated in the plaint are deemed to have been admitted and the plaintiff is entitled to a decree on his pleading unless the defendant satisfies the court that he has a tenable defence and the court is pleased to grant him leave to defend the suit which it might do either unconditionally or subject to such reasonable conditions as it might deem fit to impose. This is provided for by Order 37 Rule 2, the material portions of which are.

"(2) (1) All suits upon bills of exchange, hundies or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in form prescribed; but the summons shall be Form No. 4 in Appendix B or in such other form as may be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms, respectively the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree"

and this sub-rule provides for the amount for which a decree might be passed. The procedure for leave (o defend referred to in paragraph 2 of the sub-rule which I have extracted above is to be found in Rule 3 which is in these terms:

''3 (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.' This is followed by Rule 4 reading thus :

"(4) After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do and on such terms as the Court thinks fit."

4. The time which a defendant, on whom summons is served as provided under Order 37, Rule 2, paragraph 1 has to file an application for leave to appear and defend the suit is to be, found in Article 159 of the Limitation Act which prescribes a limitation of ten days commencing from the time when the summons is served. It might now be taken- as settled that a Court has no power to extend the period of ten days prescribed by Article 159 of the Limitation Act within which an application for leave to defend the suit under Order 37, Rule 3 could be filed into Court Rajamannar C. J. delivering the judgment of the Bench of this Court in Shah Mahomed Khan v. Woodfall, (A),explained the position thus:

"Under Order 37, Rule 3, C. P. C., the Court shall upon application by the defendant, give leave to appear and defend the suit, after the defendant satisfied - the Court by facts disclosed in affidavits that there is prima facie defence. Order 37, Rule 2 (2) of the Code provides that in any case in which the defendant has not obtained such leave, the allegations in the plaint shall be deemed to be admitted and that the plaintiff shall be entitled to a decree. We are not now concerned with the provision in Rule 4 of Order 37 which empowers the Court in special circumstances to set aside the decree and then give leave to the defendant to appear and defend the suit. Article 159 of Schedule 1 to the Indian Limitation Act prescribes a period of ten days from the time when the summons is served for an application for leave to appear and defend a. suit under Order 37, Crl. P. Code, So an application filed after the prescribed period of ten days would be barred by limitation and will have to be rejected under S. '3 of the Limitation Act, unless the period is extended under' any of the provisions contained in Ss. 4 to 25 of the Limitation Act. Section 5 is one such section. It runs thus : "Any appeal or application for review of judgment for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed there for, when the appellant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

This section, has not been made applicable to an application under Order 37, Rule 3 of the Code. Therefore, the Court would have no power to extend the period of 10 day's prescribed by Article 159. We are not aware of any other provision of law under which the period for filing an application under Order 37 can be extended, except no doubt where fraud is alleged, in which case S. 18 of the Limitation Act would apply."

The learned Judges held that Section 5 of the Limitation Act was inapplicable to applications, under Order 37, Rule 3 which were governed by Article 159 and on that ground set aside the order of the lower Court which had excused the delay in filing that application. The learned Chief Justice has referred to the earlier decisions of this Court bearing upon the proper construction of Order 37, E. 2 and while disapproving the opinion expressed by Mack J. in Murahari Rao v. Bapayya, 1949-1 MLJ 514: (AIR 1949 Mad 742) (BJ and of Govinda Menpn J., in Srinivasan v. Bhakthavatsalu, (C), approved the decision of Chandra Reddi J. in James Manickam v. Jayanarayana Daga, (D). All. these however related to the power of the Court to condone the delay in filing an application for leave to defend under Order 37, Rule 3.

But learned counsel for the petitioner urged that if the Court had no power to extend the time in a case governed by Order 37, Rule 3, on the facts of the present case on 20-9-1954 when the suit stood adjourned without an application for leave to defend the suit- having been filed by the respondent, it would be illogical to hold that merely because a decree had been passed on that date and an application was made to set aside that ex parte decree tho Court obtained power to grant leave to defend under Order 37, Rule 4.

In my judgment, however, the logic which the learned counsel for the petitioner urges cannot override the positive provisions enacted in Order 37, Rule 4 and the matter must therefore be decided not by reference to the scope of IX 37, Rules 2 and 3 as interpreted by this Court but on the terms of the language employed in thee relevant provision -- Rule 4. The terms of Rule 4 are not ambiguous and leave no room ' for argument. It states that after decree the Court, may under special circumstances, set aside the decree and give leave to the defendant to defends the suit -- words of wide amplitude which place no restriction on the power of the Court.

The discretion here vested in the Court is no doubt judicial. I might at once point out that the only question now urged before me is as regards the jurisdiction of the Court and not whether this jurisdiction was properly exercised. Learned counsel for the petitioner urged that though the language of Rule 4 was wide; it must be given a limited operation and the Court should by a process of construction read the provision as meaning that in cases where the defendant had appeared in answer to the summons under Rule 2 and had allowed the period of ten days within which he could have filed an application for leave, to defend, to expire, he' could not be granted leave to defend under Rule

4.

In other words the construction for which learned counsel contended was that Rule 4 only applied to cases where the ex parte decree was being set aside on the ground that there had not been a proper service of summons and not to a case where the decree was set aside because the defendant who was served had sufficient cause for non-appearance. In my opinion to uphold this argument would be not to construe the section but to legislate, for without adding words to the rule the result which counsel has in view cannot be achieved.

5. Further it does, not appear to me that the decisions of his Court which have air been referred to and summarised 'in (A), logically involve the conclusions urged by Mr. Rattan counsel for the petitioner. It is no doubt true that Mack J. held that a Court derived the power to condone the delay in filing an application under Rule 3 by reason of the provisions contained in Rule 4 and the learned Judge was held to be wrong in his construction of Order 37, Rule 3.

But the converse does not follow that if an application under Order 37, Rule 3, is barred by limitation an application under Order 37, Rule 4 should also be rejected on the same ground. The above reasoning was thus referred to by the learned Chief Justice at page 335 : "We are unable to see how Order 37, Rule 4 has any bearing on this question. That provision refers to a stage after decree." It was the same reasoning that is to be found in the judgment of Chandra Reddi J. in (D). Referring to-Order 37 Rule 3 the learned Judge said :

"It does not follow that a Court has power to extend time or condone the delay in filing an application for leave to defend within the prescribed time, merely because the Court is invested with power to set aside decrees under special circumstances under Order 37, Rule

4."

6. It has to be admitted that the point urged by learned counsel is not covered by any express decision and the matter is res integra. It has therefore to be decided cm proper construction of the terms of the provision. Viewing it thus I have reached the conclusion that just as the existence of Order 37, Rule 4 is not a ground for holding that there is a power to condone delay or extend the period of limitation for filing an application under Order 37, Rule 3, the provisions of Order 37, Rule 3 and the period of limitation prescribed within which an application could be filed, do not restrict the power of the Court to grant leave to defend when such an application has been preferred by a party who has entered appearance in pursuance of a notice under Order 37, Rule 2 but as against whom an, ex parte decree has been passed.

7. The Court below had "jurisdiction to pass the order in I. A; No. 1102 of 1954. The civil revision petition fails and is dismissed. As the point is not covered by any authority, there will be no order as to costs in this revision.


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