JAMES MANICKAM Vs. JAYA NARAYAN DAGA
HIGH COURT OF MADRAS
Jaya Narayan Daga
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Chandra Reddi, J. -
(1.) THIS revision petition is filed by the defendant against the order of the Principal Judge, City Civil Court, refusing to extend time for leave to appear and defend the suit instituted by the respondent under the summary provisions of Order 37, Civil P. C. The suit was laid for the recovery of Rs. 1905 due on a promissory note executed by the defendant for Rs. 6000 on 4 -6 -1951. The suit amount was claimed after giving credit for Rs. 4700 paid by the defendant on various dates subsequent to the execution of the promissory cote. Summons was issued in form No. 4 in Appendix B of the Civil Procedure Code, and the defendant was called upon to obtain leave to appear and defend within ten days from the service of the summons, if need be. Although the defendant filed a 'Vakalat' on 29 -1 -1952, he did not make an application for leave to appear and defend the suit. He merely filed a written statement on 13 -3 -1952.
(2.) WHEN the suit came on for hearing on that date, the plaintiff asked for a decree as the defendant had not applied for leave to de -lend the suit. Thereupon the defendant filed an application for permission to defend the suit and also for excusing the delay in doing so. This was opposed by the plaintiff. It was contended on behalf of the plaintiffs that the court had no jurisdiction to enlarge the time for application for leave to defend and secondly the affidavit in support of the petition to excuse delay, did not disclose sufficient cause to condone the delay. The reason given by the defendant in the application to excuse delay was that he mislaid the summons and focuses all his attention on a garnishee summons and never noticed the circumstance that the suit had been filed under Order 37, Rule 5, Civil P.C.
(3.) THE trial court while overruling the objection as to the jurisdiction, dismissed the petition holding that he did not believe the defendant's story that the summons was mislaid and that the neglect was so culpable as to disentitle the defendant to all relief. The aggrieved defendant has filed this revision petition.;
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