A.K. TOPIWALLA Vs. KESHABALAL JETHABHAI
HIGH COURT OF CALCUTTA
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S.K. Datta, J. -
(1.)This Rule is directed against Order No 16 dated November 27, 1973, passed in Commercial Suit No 26 of 1973. It appears that the Petitioner filed a suit under Order XXXVII of the Code of Civil Procedure and the summons of the suit was served on August 6, 1973. Thereafter, an application was filed within ten days on August 16, 1973, praying for time to file the application for leave to defend under Order XXXVII, Rule 3 of the Code. No order was passed on this application on that date and the application was put up for orders on August 18, 1973. On that day the Court recorded "on considering the same time is allowed till 25.8.73 for filing leave petition supported by an affidavit by the Defendant and to -date for orders." Thereafter, on August 25, 1973, the application under Order XXXVII, Rule 3 was filed. The Plaintiff filed an objection contending that as the application under Order XXXVII Rule 3 was filed beyond ten days of the service of summons, as required by Article 118 of the Limitation Act, the application should be rejected. The learned Judge, on the consideration of the respective contentions, sustained the objections and rejected the Defendant's application under Order XXXVII, Rule 3 of the Code. This Rule has been obtained by the Defendant against this order.
(2.)Under Article 118, in case of a summary proceeding, time to leave to appear and defend a suit is ten days from the date of service of summons Admittedly, on August 25, 1973, the application was out of time. The question, now, is whether the Court will accept the application in the facts and circumstances of this case. It will appear that the Court, by its own order, granted time upto August 25, 1973, for filing the application by the Defendant.
(3.)It is contended by the learned Advocate for the opposite party that this order was without jurisdiction. In Support of his contention, the learned Advocate relied on the decision in the case of Pulin Krishna Roy v/s. Susil Kumar Dey, (1948) 53 C.W.N. 192 and also on a Special Bench decision in the case of Tailors Priya v/s. Gulab Chand Dhanraj : A.I.R. 1963 Cal. 36.
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