Sekuru Murahari Rao vs Kandula Bapayya

Mack, J.—The petitioner is a plaintiff who filed a suit on a promissory note under the summary provisions of Order 37, Rule 2 of the Civil

Procedure Code, A summons was issued requiring the appearance of the defendant within ten days o service. On the 11th day after service the

defendant appeared and moved the Court under Order 37, Rule 3, for leave to defend on the ground that the promissory note sued on was a

forgery. The learned District Munsiff gave him, leave to appear and defend the suit unconditionally overruling a technical contention that there was

no provision under the Limitation Act to condone any delay in the ten days given in the summons No. 4 in App. B prescribed under Order 37,

Rule 2.

The learned District Munsiff found some difficulty in meeting a technical argument that the Limitation Act made no specific provision for

condoning such a delay. His reasoning to get over the technical argument advanced before him is open to a little criticism. It is true that there is no

specific provision in Order 37, Rule 2 or in the Limitation Act empowering a Court to condone a delay in appearance beyond the ten days

prescribed by the summons in Form No, 4. Technicality can be met with technicality, because the default recited in this summons for non-

appearance within ten days is that the plaintiff will be entitled after the expiration of this period to obtain a decree with costs. It is common ground

that no decree was passed by the Court when the defendant filed his application for leave to defend On the nth day. Furthermore under Order 37,

Rule 4, even after decree the Court may, under special circumstances, set aside and give leave to the defendant to defend the suit on terms it thinks

fit. A fortiori if the Court has passed no decree, it clearly has ample discretion to give the defendant such leave, notwithstanding the fact that he has

not appeared within ten days of the service of the summons on him in Form No. 4, App. B.

There is no substance at all in this petition, the District Munsiff having ample discretion and power to pass the order he did. It is not necessary

that every procedural order of the 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.

The petition is dismissed with costs.