A.K. Topiwalla vs Keshabalal Jethabhai

S.K. Datta, J.—This Rule is directed against Order No 16 dated November 27, 1973, passed in Commercial Suit No 26 of 1973. It appears that the Petitioner filed a suit under Order XXXVII of the CPC and the summons of the suit was served on August 6, 1973. Thereafter, an application was filed within ten days on August 16, 1973, praying for time to file the application for leave to defend under Order XXXVII, Rule 3 of the Code. No order was passed on this application on that date and the application was put up for orders on August 18, 1973. On that day the Court recorded "on considering the same time is allowed till 25.8.73 for filing leave petition supported by an affidavit by the Defendant and to-date for orders." Thereafter, on August 25, 1973, the application under Order XXXVII, Rule 3 was filed. The Plaintiff filed an objection contending that as the application under Order XXXVII Rule 3 was filed beyond ten days of the service of summons, as required by Article 118 of the Limitation Act, the application should be rejected. The learned Judge, on the consideration of the respective contentions, sustained the objections and rejected the Defendant''s application under Order XXXVII, Rule 3 of the Code. This Rule has been obtained by the Defendant against this order.

Under Article 118, in case of a summary proceeding, time to leave to appear and defend a suit is ten days from the date of service of summons Admittedly, on August 25, 1973, the application was out of time. The question, now, is whether the Court will accept the application in the facts and circumstances of this case. It will appear that the Court, by its own order, granted time upto August 25, 1973, for filing the application by the Defendant.

It is contended by the learned Advocate for the opposite party that this order was without jurisdiction. In Support of his contention, the learned Advocate relied on the decision in the case of Pulin Krishna Roy v. Susil Kumar Dey (1948) 53 C.W.N. 192 and also on a Special Bench decision in the case of Tailors Priya, a firm Vs. Gulabchand Danraj, a firm, .

The learned Advocate for the Petitioner contends that all these decisions were under the old Limitation Act whereas, in the instant case, we are concerned with the Limitation Act of 1963. He, further, submits that in view of the circumstances referred to above, there was sufficient case for not making the application under Order XXXVII, Rule 3 within the time allowed and the cause for delay in making the application in view of the Court''s order extending the time, should have been considered as sufficient.

It appears to us that Section 5 of the Limitation Act provides for admission of an application after the prescribed period, if the Applicant satisfied the Court that he had sufficient cause for not making the application within such period. In the facts and circumstances of the case, we are satisfied that the Defendant had sufficient cause for not making the application within the statutory period. It is, further, submitted that there was no application u/s 5 of the Limitation Act for condoning such delay. It appears, on a perusal of the section, that filing of an application u/s 5 is not a condition precedent for giving relief under that section. If, on the facts and circumstances of the case, the Court finds that there is sufficient cause for condoning the delay, the Court has certainly the jurisdiction u/s 5 to do so. In the two cases cited before us, it appears that no steps were taken by the Defendant within ten days of the service of summons and further, these cases were governed by the old Limitation Act which in respect of Section 5 had limited application.

In view of the above, the impugned order cannot be sustained and is set aside. The Rule is, accordingly, made absolute and the Defendant''s application under Order XXXVII, Rule 3 of the Code is accepted. The suit will now proceed in accordance with law. There will be no order as to costs.

Let the records be sent down at once.

H.N. Sen, J.

I agree.