1. In a civil suit under Order 37, Civil P. C.. the defendant had made an application on 30-4-1976 purported to be under Order 37, Rule 3, Civil P.C. that he was interested to defend the suit on the grounds mentioned in the application and sought permission to defend the suit This application was considered by a learned single Judge (Anand J. as his Lordship then was), who after hearing the parties made an order that the defendant be permitted to amend the application and add a prayer to the effect that he wants to appear in the suit. In the original application the permission to appear in the suit was not mentioned. Learned Counsel for the plaintiff submitted that it was obligatory for the defendant to seek permission to appear and defend the suit under the provisions of Order 37, Civil P.C. Merely seeking permission to defend the suit will not satisfy the requirement of the procedure. He has in support of his submissions relied on a Division Bench authority of this Court viz : Lala Gopaldass v. Lala Chander Prakash. reported in AIR 1966 J & K 138. It is held in this authority that procedure under Order 37 is both harsh and rigorous which is required to be strictly construed. It is further held that the words 'appear' and 'defend' being separated by disjunctive 'or' disability imposed by Rule attaches separately both to appearance and defending. It further goes on to say that appearance at any stage of the suit before or after service of summons and for any purpose whatsoever without leave of the court is destitute of legal effect. The principle laid in this authority lays emphasis that the defendant should seek permission for appearance and defending the suit. In the instant case permission to appear was not sought in the application, therefore, the learned counsel for the plaintiff argues that in the absence of a prayer made for appearance in the suit consequences of Order 37, Rule 2, C.P.C. shall follow and the allegations in the plaint shall be deemed to be admitted by the defendant and the plaintiff shall be entitled to a decree. The learned single Judge has in principle agreed with this proposition and has therefore allowed in the interest of justice the defendant to amend the application so as to include prayer for appearance in the suit. This according to the learned counsel for the plaintiff could not be done because on 19-10-1976' when the order was made a right had accrued to the plaintiff to obtain a decree as there was no application within the meaning of law which could entitle the defendant to appear and defend the suit. It is pertinent to mention that such an application is to be made by the defendant within thirty days from the date of service of the summons or where summons is not served within thirty days from the date of his first appearance in the court. The application to defend the suit dated 30-4-1976 made by the defendant was within time, and was governed by Article 159 of the Limitation Act. On the date when the amendment was permitted by the learned single Judge to be made in the application, a fresh application would have been barred under law. He has relied on an authority of this Court viz: Ahmad Joo v. Jaffar Malik, AIR 1958 J & K 21 for the proposition that mortgagors cannot be permitted to amend their plaint in such a manner as to include redemption of those parts of the mortgaged land in respect of which their right to institute the application under the Jammu and Kashmir Restitution of Mortgaged Properties Act has become barred. In the present case a fresh application on 19-10-1976 had become barred as the limitation to file the application had expired, therefore, the order of the learned single Judge is not correct.
2. Learned Counsel for the defendant has on the basis of an authority of this Court viz : Krishen Lal v. Jagdish Dutt Badyal, AIR 1962 J & K 47 submitted that leave to defend if granted is not a judgment within the meaning of Clause 12 of the Letters Patent and the appeal, therefore, is incompetent.
3. We have heard the learned counsel for the parties at length.
4. At the outset we may say that AIR 1962 J & K 47 (supra) is not applicable to the facts of the case because leave has not been granted by the learned single Judge. He has only permitted the defendant to amend his application and thereafter the application was to come up before the learned Judge for consideration afresh. This appeal is directed against the permission granted to the defendant to amend his application and the amendment allowed by the learned Judge is impugned in this appeal. If the order of amendment is held to affect the rights of the plaintiff then a Letters Patent Appeal is competent because any order which affects the rights of the parties will be appealable under Clause 12 of the Letters Patent. This proposition of law is no longer in dispute now in view of the authoritative pronouncements of this Court and also of the Supreme Court.
5. The question, therefore, remains as to whether permission to amend the application granted to the defdt. is valid or not. Admittedly on the date of the order i.e. 19-10-1976 a fresh application to appear and defend the suit had become barred by time and on 19-10-1976 a right had accrued to the plaintiff to obtain a decree under Order 37, Rule 2(2) of the Code of Civil Procedure as there was no application made by the defendant to appear and defend the suit as was required to be made under law. The amendment granted to the defendant has, therefore, deprived the plaintiff of his right which had vested in him, the right being that he was entitled to obtain a decree as the defendant had failed to seek the permission of the court to appear and defend the suit within the specified time. We are fortified in our view by an authority of the Supreme Court viz : L. J. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357. It is observed by the Supreme Court that the Courts would as a rule decline to allow amendment if a fresh suit on the amended claim would be barred by limitation on the date of the application. Order 37, Rule 2(2), C.P.C. definitely entitles the plaintiff to obtain a decree because in the absence of any application on behalf of the defendant for leave to appear and defend the suit, the allegations made in the plaint are to be deemed to be admitted. There was no proper application filed within the period of limitation and that proposition is not disputed by the learned single Judge also. But by allowing amendment in the application the effect would be that a vested right which had accrued to the plaintiff was taken away and the plaintiff was deprived of the benefit which had accrued to him under Order 37, Rule 2(2), C.P.C.
6. We are in respectful agreement with the authority of this Court reported in AIR 1966 J & K 138 (supra) as the principle for obtaining leave to appear and defend the suit brought under Order 37, C.P.C. is concerned. The rigour of Order 37, Rule 2(2) is punctually to be observed. The application once made for this purpose is to be construed on its merits. If application for obtaining leave to appear and defend in the suit is not governed by the provisions of Order 37 the same can be amended within the period of limitation but after the expiry of limitation its amendment cannot be permitted because after the expiry of limitation, if no leave is sought to appear and defend the suit, plaintiffs claim set up in the plaint will be deemed to be admitted and he will be entitled to get a decree. On the date of the order allowing amendment, fresh application was barred in the instant case and if an application is made beyond time then sufficient cause is to be shown for the delay and condonation of delay is to be obtained. Therefore the provisions of Section 5 of the Limitation Act are made applicable to such applications which are required to be filed under Order 37, Rule 3(1) of the Code of Civil Procedure. In the present case if the order of amendment could be assumed to be correct also, then it was the duty of the defendant to seek condonation of delay in filing the application in accordance with law after the period of limitation. That was also not been done. Therefore, the amendment effected by the defendant in his application by inserting the word 'appear' also cannot be permitted to be made as the same was made beyond the period of limitation prescribed for the purpose and without seeking condonation of delay. Therefore, the order dated 19-10-1976 passed by the learned single Judge cannot be upheld.
7. Allowing this appeal we set aside the order dated 19-10-1976 passed by the learned single Judge and hold that the defendant had failed to obtain leave to appear and defend the suit within the period of limitation as required under law. The effect of this order is to be considered by the learned Judge who is seized of the matter on original side. The Civil original suit shall be placed before the learned Judge for further proceedings in accordance with law. No order as to costs.