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James Manickam Vs. Jaya Narayan Daga - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1686 of 1952
Judge
Reported inAIR1953Mad767; (1953)IMLJ825
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rule 2; ;Limitation Act, 1908 - Schedule - Article 159
AppellantJames Manickam
RespondentJaya Narayan Daga
Appellant AdvocateJan and San, Advs.
Respondent AdvocateV. Krishnaswami, Adv.
DispositionRevision dismissed
Cases ReferredKamalamma v. Ismail Isphani
Excerpt:
- - the learned chief justice has remarked that although order 1 of the original side rules deals with the procedure for summary suits like order 37, c. 11. i am clearly of opinion that the city civil court to which the provisions of order 37, c......for consideration in that case was whether the provisions of order 37, rule 4 were applicable to suits filed on the original side of this court. an argument was advanced on behalf of the defendant that that rule was applicable to suits on the original side, because order 7 of the original side rules which deals with the procedure for suits to be filed under that order was silent on the subject and also for the reason that the applicability of order 37, rule 4 had not been specifically excluded. the learned chief justice has remarked that although order 1 of the original side rules deals with the procedure for summary suits like order 37, c. p. c., it differs in material particulars from order 37, rule 4 of the code. one of such differences, the learned chief justice has pointed out is.....
Judgment:

Chandra Reddi, J.

1. This revision petition is filed by the defendant against the order of the Principal Judge, City Civil Court, refusing to extend time for leave to appear and defend the suit instituted by the respondent under the summary provisions of Order 37, Civil P. C. The suit was laid for the recovery of Rs. 1905 due on a promissory note executed by the defendant for Rs. 6000 on 4-6-1951. The suit amount was claimed after giving credit for Rs. 4700 paid by the defendant on various dates subsequent to the execution of the promissory cote. Summons was issued in form No. 4 in Appendix B of the Civil Procedure Code, and the defendant was called upon to obtain leave to appear and defend within ten days from the service of the summons, if need be. Although the defendant filed a 'Vakalat' on 29-1-1952, he did not make an application for leave to appear and defend the suit. He merely filed a written statement on 13-3-1952.

2. When the suit came on for hearing on that date, the plaintiff asked for a decree as the defendant had not applied for leave to de-lend the suit. Thereupon the defendant filed an application for permission to defend the suit and also for excusing the delay in doing so.

3. This was opposed by the plaintiff. It was contended on behalf of the plaintiffs that the court had no jurisdiction to enlarge the time for application for leave to defend and secondly the affidavit in support of the petition to excuse delay, did not disclose sufficient cause to condone the delay. The reason given by the defendant in the application to excuse delay was that he mislaid the summons and focusses all his attention on a garnishee summons and never noticed the circumstance that the suit had been filed under Order 37, Rule 5, Civil P.C.

4. The trial court while overruling the objection as to the jurisdiction, dismissed the petition holding that he did not believe the de-lendant's story that the summons was mislaid and that the neglect was so culpable as to disentitle the defendant to all relief. The aggrieved defendant has filed this revision petition.

5. Mr. Subramaniam urged that the reasons given by the learned City Civil Judge for dismissing the petition are untenable. On the other hand Mr. Krishnaswami maintained that the view of the trial court that it had jurisdiction to extend time and to condone delay is erroneous, and there is no basis for this under the provision of Order 37 and it is not necessary to canvass the finding on the merits.

6. So the main point for consideration is, whether it was competent for the trial court to extend time for filing an application, for leave to defend. In support of the view that the court has got power to enlarge time in such cases, reliance was placed on the ruling of Mack J. in -- 'Murahari Rao v. Bapayya', AIR 1949 Mad 742 (A), In that case a suit was filed on a promissory note under Order 37, Rule 2, C. P. C. Summons was issued to the defendant calling upon him to apply within ten days for leave to defend if he should choose to do so. On the llth day after service of notice, the defendant appeared and asked for leave to defend. The District Munsif in whose court the suit was instituted granted him leave asked for disagreeing with the objection raised on behalf of the defendant that there was no provision in Chapter 37, Civil P. C. to excuse delay or to extend time beyond the ten days prescribed in the summons. It may be stated here, incidentally, that the ten days time mentioned in the summons in form No. 4 is prescribed by Article 159, Limitation Act.

7. In a revision petition against the order of the District Munsif, Mack J. laid down that if under Order 37, Rule 4, a court could set aside a decree under special circumstances, it can 'a fortiori' have power to give the defendant leave to defend although the time mentioned in the summons had expired. I must express my respectful disagreement with this view of the learned Judge.

8. There can be no controversy that Order 37 does not contain any provision for extending the time prescribed in the summons in form No. 4, Schedule B. Nor has Section 5, Limitation Act, been extended to this chapter of the Civil Procedure Code. It does not follow that a court has power to extend time or condone 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.

9. When a period has been fixed for the purpose of doing an act or taking a proceeding under the statute of limitations or under any other enactment, courts do not possess the power to extend the time unless and until such a power is specifically conferred upon them. In this case, the courts have not been invested with such a power. That being so, in my opinion, it is not competent for a court acting under Order 37, C. P. C., to excuse delay in filing an application for leave to appear and defend in a suit under the summary chapter.

10. This view gains support from the observations of the learned Chief Justice who delivered the judgment on behalf of the Bench in -- 'Kamalamma v. Ismail Isphani', : AIR1951Mad895 (B). The point for consideration in that case was whether the provisions of Order 37, Rule 4 were applicable to suits filed on the original side of this court. An argument was advanced on behalf of the defendant that that rule was applicable to suits on the original side, because Order 7 of the Original Side Rules which deals with the procedure for suits to be filed under that order was silent on the subject and also for the reason that the applicability of Order 37, Rule 4 had not been specifically excluded. The learned Chief Justice has remarked that although Order 1 of the Original Side Rules deals with the procedure for summary suits like Order 37, C. P. C., it differs in material particulars from Order 37, Rule 4 of the Code. One of such differences, the learned Chief justice has pointed out is that while there is no provision under Order 37 of the Code for enlargement of time over and above ten days for applying and obtaining leave to defend, there is a pro-vision under Order 7 of the Original Side Rules for extension of time.

11. I am clearly of opinion that the City Civil Court to which the provisions of Order 37, C. P. C., apply has no power to 'condone the delay in filing and obtaining leave to defend suits filed under Rule 2 of Order 37, Civil P. C. It follows that the order under revision has to be confirmed though for different reasons.

12. In the result, the civil revision portionis dismissed without costs.


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