Decided on March 13,1953

S. Srinivasan And Anr. Appellant
P. Bhakthavatsulu Naidu Respondents


Govinda Menon, J. - (1.) THIS is a petition to revise the order of the Third Additional City Civil Judge, Madras, refusing leave to the petitioner to defend a suit by excusing the delay in filing the application for leave to defend.
(2.) THE respondent plaintiff filed O. S. No. 332 of 1951 in the City Civil Court on a promissory note as a summary suit under Order 37, Rule 1(b), Civil P. C. for recovering a sum of Rs. 2013 -14 -0. The petitioners defendants were served with the summons as provided in form No. 4 of Appendix B to the Civil P. C. which was marked" before the learned Judge as Ex. A. 1. In that summons in addition to the form prescribed there were the further words "Hearing 22 -3 -1951 at 11 a.m." added to it. The summons were Served on 5 -3 -1951 and therefore ordinarily under Article 159, Limitation Act the application for leave to defend ought to be filed within ten days of the service of summons. But being misled by the additional words "hearing on 22 -3 -1951 at 11 a.m." the petitioners thought that they had time for applying for leave to defend until 22 -3 -1951 and therefore approached their counsel only on 21 -3 -1951 and instructed him to file the application for getting leave to defend. The lower Court has dismissed the petition on the ground that the period of ten days provided for under Article 159, Limitation. Act having expired there was no jurisdiction in the Court to extend the time for granting leave to defend. Mack J. had to consider a similar case in - - 'Murahari Rao v. Bapayya'., AIR 1949 Mad 742 (A), where the facts were practically similar. There also summonses were issued under Order 37, Rule 1, Civil P. C. to the defendant requiring -his appearance within ten days of service. A day after the expiry of the period fixed, the defendant appeared and moved under Order 37, Rule 3, Civil P. C. for leave to defend. The District Munsif granted him leave to defend unconditionally and on that order the plaintiff preferred a civil revision petition. While dismissing the same Mack J. observed as follows : "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 11th day. Furthermore under Order 37, Rule 4, even after the 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, Appendix B." These observations have special relevancy to the present case and have my support.
(3.) LEARNED counsel for the respondent relies upon certain observations contained in a decision of Rajamannar C. J. and Panchapakesa Ayyar J. in - - 'Kamalamma v. : AIR1951Mad895 (B), which are as follows: "While there is no provision in Order 37 of the Code for enlargement of time over and above the ten days for applying and obtaining leave to defend, there is provision in Order 7 of the Original Side rules for extension of time by the Registrar." I am asked to say that in the circumstances of this case the order of the lower Court refusing leave to defend is justified. As stated by Mack J. it is somewhat incongruous that a Court which after passing a decree on default] of appearance can set aside the same, should have no power, before passing the decree to; extend the time for applying for leave to de -fend. In the present case there are ample reasons for the defendants being misled because the summons clearly stated that the hearing, was on 22 -3 -1951. Though in the typed body! of the notice it was stated that leave to defend should be obtained within ten days, the insertion in manuscript as a separate paragraph in the summons that the hearing would be on 22 -3 -1951 is certainly likely to mislead the defendants. 'Actus curiae neminem gravabit', (an act of Court shall prejudice no man). Acts of mistake at the hands of Court" should not prejudice a suitor and as such I am inclined to agree with Mack J. that the Court ought to have, before passing the decree, granted leave to defend. Article 159, Limitation Act can be construed only as prescribing the period of ten days when the summons does not Specifically fix a date for the hearing. In such circumstances one cannot say definitely that the period of ten days fixed under Article 159, Limitation Act is an inflexible one. I am therefore inclined to agree with Mack J. and hold that ex debito justitiae leave, to defend ought to have been granted. The civil revision petition is therefore allowed and I. A. No. 1067 of 1951 is remanded to the lower Court for disposal according to law. The costs of this revision petition will abide and follow the result.;

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