Kishan Singh vs Mohd. Shafi and Others

In this suit which is under Order 37 of the CPC there are three Defendants: Mohd. Shaft, Triloki Nath and Hirday Nath. The Defendants,

Hirday Nath and Triloki Nath applied on 9-9-63 for leave to defend the suit. This application is supported by an affidavit. The first Defendant,

Mohd. Shafi. presented a similar application supported by an affidavit on 19-9-63. Along with this application he put in Anr. application for

extension of time. The Defendant Mohd. Shafi was served on 16-8-63, Hirday Nath on 13-8-63 and Triloki Nath Defendant was served on 10-

8-63. The grounds taken In the applications for defending the suit are numerous. It is stated that' the pronote in question is without consideration,

that there has been no proper presentation of the pronote, that there has been no contract of paying interest and that there is no sum outstanding

against the Defendants, so on and so forth.

I have heard the arguments of the learned Counsel with respect to these applications for grant of leave to defend the suit. The guiding principle

for either granting or refusing leave to defend the suit under Order 37 of the CPC is that the affidavit which accompanies a petition for leave to

defend must disclose a defence, that is a triable issue or a plea which is at least plausible, no matter whether the defence is legal or equitable, even

though it may not ultimately turn to be a good defence. In this case there are a number of points raised which can be the subject matter of different

issues between the parties; therefore leave to defend the suit has to be granted.

There is difficulty in the case of Mohd. Shafi who has not applied for leave to defend the suit within the .statutory period of thirty days from the

date of service. Mr. Bhan contends that in his case leave should not be granted and that his application should be refused without a final order this

way or that being passed in the suit. I have considered the arguments advanced by both the counsel on this point. There is a difficulty in accepting

the arguments advanced by Mr. Bhan. The pronote is jointly executed by all the three Defendants and the defence is again a common one. If I

refuse per mission to Mohd. Shafi to defend the suit, then under the provisions of Order 37 Rule 2 of the CPC I have to accept the allegations in

the plaint as admitted and the Plaintiff shall be entitled to a decree for the principal sum due and interest and costs and future interest. It would be a

contradiction in terms if after leave has been granted to two other Defendants to contest the suit and ultimately, for the sake of argument be it said

at least, that the suit of the Plaintiff does not succeed, it shall stand decreed against the third Defendant on the same material on record.

The application u/s 5 of the Limitation Act presented by Mohd. Shafi is misconceived. Section 5 of the Limitation Act has not been made

applicable to such petitions in this State, though some other High Courts, for instance the High Courts of Lahore and Bombay, have extended

Section 5 of the Act to such applications. It is high time that the legislature of the State extend the provisions of Section 5 to such petitions.

I have come across two authorities of the Madras High Court reported as S. Murahari Rao v. K. Bapayya AIR 1949 Mad 742 and S.

Srinivasan and Another Vs. P. Bhakthavatsulu Naidu, . In the former decision Mack J held that the Court has jurisdiction to condone delay and

give leave even if the application for leave to defend has not been made within the prescribed period of limitation. He further held that

it is not necessary that every procedural order of a Court should be supported by a specific statutory provision, and when there is neither provision

nor prohibition it has to be guided by ordinary principles of common sense, justice, equity and good conscience.

Similarly Govinda Menon J. in S. Srinivasan and Another Vs. P. Bhakthavatsulu Naidu, has laid down that a Court has power in a proper case

before the passing of decree, to grant leave to defend the suit even though the Defendant has not applied for leave within the prescribed period of

the service of summons upon him.

But these two authorities were not considered good law in Shah Mohamed Khan v. H.N. Woodfall (S) AIR 1955 Mad 637 in which case a

Division Bench of that Court consisting of Rajamannar C.J. and Somasundaram J. held that a Court has no power to condone the delay in filing the

application under Order 37 Rule 3 CPC as Section 5 of the Limitation Act has not been made applicable to it. Section 3 of the Limitation Act is

mandatory, and when the application is filed beyond the time prescribed by Article 159 it must be dismissed.

In James Manickam v. Jaya Narayan Daga AIR 1953 Mad 767 Chandra Reddi J. also took the same view as has been taken by the Division

Bench in (S) Shah Mohamed Khan Vs. H.N. Woodfall, .

The Division Bench authority of the Madras High Court (S) Shah Mohamed Khan Vs. H.N. Woodfall, is based on a reading of Section 5 and

Article 159 of the Limitation Act. On a deeper analysis of the provisions of Order 37 of the Code of Civil Procedure, this authority appears to be

not only harsh and too technical but ignores the other provisions of Order 37 Rule 4 of this Order (which?) empowers a Court under special

circumstances to set aside a decree passed by the Court under the provisions of this Order, and further empowers it to grant leave to the

Defendant to appear and defend' the suit. A case can be envisaged wherein there exist special circumstances within the meaning of this rule which

would satisfy a Judge to set aside the decree and allow the Defendant to defend the suit under the provisions of Rule 4. But if (S) Shah Mohamed

Khan Vs. H.N. Woodfall, is followed strictly, it means that the same set of special circumstances when brought to the notice of the Court under the

provisions of Rule 2 are to be rejected, because the application for leave to defend is not presented within the period of limitation prescribed

therefore. The Judge being, therefore, powerless, has to pass a decree as envisaged by Order 37 Rule 2. After passing the decree on the same set

of facts, he can set aside the decree and grant the Defendant leave to defend the suit. This would look not only anomalous, but I should even go to

the length of saying ridiculous, and would result only in duplication of work and waste of time or the Court and the parties. If the Court has power

to allow the Defendant to get a decree set aside in the special circumstances disclosed by him to toe -satisfaction of the Court under Rule 4 and be

permitted to defend the suit, this power should be considered inherent in the Court while disposing of his application for leave to defend under the

provisions of Rule 2. Otherwise the Court has first to ignore the special circumstances, pass a decree, and then on the basis of the same

circumstances set aside the decree and allow the Defendant to defend the suit.

It is a cardinal principle of interpretation of states that when two provisions of a statute appear Conflicting with each other they should be so

interpreted so that they harmonise. (See Rajkrushna Bose v. Binod Kanungo AIR 1954 SC 202. In Anr. authority of the Supreme Court reported

as Babulal Bhuramal and Another Vs. Nandram Shivram and Others, their Lordships have laid down that

If it is possible to avoid a conflict between the provisions of different sections of the same Act on a proper construction thereof, then it is the duty

of a Court to so construe them that they are in harmony with each other.

Similarly it is well settled that if two constructions are possible, the Court must adopt that which will implement and which ensures the smooth and

harmonious working of the Act or the rule and discard that which will stultify the apparent intention, and therefore, eschew the other which leads to

absurdity or gives rise to practical inconvenience or makes well established provisions of existing law nugatory. Yugal Kishore Sinha v. B.N.

Rahtoyi AIR 1958 fat 154.

In Shankarrao Madhavrao Vs. K.C. Sen and Others, it was held:

It is well established principle of interpretation that as far as possible the various provisions of a statute must be so read as not to bring them in

conflict with each other. That does not mean that reconciliation must be effected. But the various' provisions must be so read, if at all it is possible

to do so, that they do not conflict with each other.

Similarly is the principle well established that in interpreting statutes absurdity is to be avoided. In State of Bombay Vs. Bai Moti and Others, it

was laid down:

When the words in a statute are plain, the words must be given their natural and ordinary meaning. In construing a statute, words should not be

added to the statute. But there is also Anr. rule of interpretation that the legislature in enacting a section does not use superfluous words and that

every endeavour should be made to reconcile and to avoid any absurdity in the interpretation of the section.

In Bhole Main v. S.M. Islam AIR 1958 Pat 48 their Lordships laid down that it is an accepted principle of construction that all parts of a

section must be construed together and the interpretation , given must be harmonious and consistent.

Similarly when construing the different provisions of an enactment, the enactment as a whole should be considered. (Vide Gulzara Singh Nanta

Singh v. Smt. Tej Kaur AIR 1961 Punj 288).

Lord Herschell in Colquhoun v. Brooks (1889) 14 AC 493 at p. 506 observed:

It is beyond dispute ...... that we are entitled and indeed bound when construing the terms of any provisions found in a statute to consider any other

parts of the Act which-throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be

construed as it would be if 'considered alone and apart J from the rest of the Act.

In Anr. case Cox v. Hakes (1890) 15 AC 506 at p. 529 the same learned Judge held:

It cannot, I think, be denied that, for the purpose of construing any enactment, it is right to look not only at the provision immediately under

construction, but on any Ors. found in connection with it, which may throw light upon it and afford an indication that general words employed in it

were not intended to be applied without some limitation.

In the light of these observations when we interpret the provisions of Order 37 we have to so interpret them as would lead to a harmonious

construction of the entire order and avoid results which would result in absurdities and make one provision of the Act-conflict with the other.

In any view therefore, as already stated, the special circumstances which would entitle me to set aside a decree under the provisions of Rule 4

would at the same time empower me to give leave to defend the suit, even if the application is beyond time if the special circumstances mentioned

by the Petitioner are convincing.

In this case, for instance, the contention raised for extension of time is that the Petitioner Mohd. Shafi got injured in a recent fire breakout at

Bandipura and was confined to bed. Therefore ho could not present the proper application and affidavit in Court within time. The factual aspect of

the affidavit has hot been contested by the learned Counsel for the Plaintiff which means for the sake of disposal of this petition 1 must accept the

contention as given in the application and affidavit for extension of time as correct. The facts would be special circumstances which would, in my

opinion, entitle the Petitioner Mohd. Shafi to leave to defend the suit-whether before or after the decree, that would be immaterial. If the Madras

authority has to be followed, in that case I shall have first to pass a decree against Mohd. Shafi and then set it aside on the same grounds on which

I am supposed to reject it under Article 159 of the Limitation Act. In this view of the matter I would prefer the view of Mack and Govinda Menon

JJ. to the view of the Division Bench of the Madras High Court in (S) AIR 1955 Mad 637.

In this case there is Anr. fact which has to be considered and has an important bearing on the question whether leave should be granted to

Mohd. Shafi. On the same facts, in the same suit and on the same grounds leave has to be granted to the two other Defendants and it would be

self- contradictory, as already stated in an earlier portion of this judgment, to allow one set of Defendants to contest the suit and to get it possibly

dismissed also and yet pass a decree against the third Defendant on the same material. I, therefore, accept the application of all the three

Defendants and grant them leave to defend the suit. They will present their written statements on a date to be fixed by the office.