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Judgment
D.P.S. Chauhan, J.
In the matter of procedure governed under Order 37 of the Code of Civil Procedure, the defendants applied for amendment of their application before grant of leave to defend this suit. The same was rejected by the 3rd Additional District Judge, Durg in Civil Suit No. 51-B/89. The amendment was rejected on the ground that there is no provision for making amendment in the application.
Order 37, C.P.C. deals with the summary procedure and the procedure for the appearance of the defendant is given in Rule 3. Sub-clause (5) of Rule 3, C.P.C. is extracted as below :-
(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just
It permits the defendant within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit and thereupon the leave to defend may be granted either unconditionally or upon such terms as may appear to the Court or Judge to be just.
Summary proceedings, the application for leave to defend is in the nature of written statement Rule 7 of Order 37, C.P.C. provides for save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner, under Order 6, Rule 17, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Here, as per the statement made by the learned counsel for the applicants, the stage was pre leave stage and according to him, he was entitled to amend his application which was by way of defence. The Court below has erred in rejecting the prayer.
Learned counsel for the applicants relied on a case of the Calcutta High Court reported in Britania Industries Ltd. Vs. Punjab National Bank and Others, This case deals with the power of the Court under Order 6, Rule 17, C.P.C.
So far as the power of the Court is concerned the power is specified in the CPC itself. Nothing hinges out on this decision.
In the view of the provisions of Rule 7 of Order 37, the same procedure are relating to suit shall apply to the trial of the summary proceedings and accordingly before grant of leave under sub-clause (5) of Rule 3 of Order 37, if party wants to amend his application, the principles of O.6 or Principles of O.6 Rule 17 would apply.
In view of above, the revision application is accordingly allowed and the order under revision is set aside. The Court below is directed to consider the application of the applicants on merit.