NANGIA FINANCE AND CHIT FUND CO Vs. PRITHVI RAJ

JUDGEMENT

(1.) In a civil suit under Order 37, Civil P.C. the defendant had made an application on 30-4-1976 purported to be under Order 37, Rule 3, Civil P.C. that he was interested to defend the suit on the grounds mentioned in the application and sought permission to defend the suit. This application was considered by a learned single Judge (Anand J. as his Lordship then was), who after hearing the parties made an order that the defendant be permitted to amend the application and add a prayer to the effect that he wants to appear in the suit. In the original application the permission to appear in the suit was not mentioned. Learned Counsel for the plaintiff submitted that it was obligatory for the defendant to seek permission to appear and defend the suit under the provisions of Order 37, Civil P.C. Merely seeking permission to defend the suit will not satisfy the requirement of the procedure. He has in support of his submissions relied on a Division Bench authority of this Court viz : Lala Copaldass v. Lala Chander Prakash, reported in AIR 1966 Jand K 138. It is held in this authority that procedure under Order 37 is both hersh and rigorous which is required to be strictly construed. It is further held that the words "appear" and "defend" being separated by disjunctive "or" disability imposed by Rule attaches separately both to appearance and defending. It further goes on to say that appearance at any stage of the suit before or after service of summons and for any purpose whatsoever without leave of the Court is destitute of legal effect. The principle laid in this authority lays emphasis that the defendant should seek permission for appearance and defending the suit. In the instant case permission to appear was not sought in the application, therefore, the learned counsel for the plaintiff argues that in the absence of a prayer made for appearance in the suit consequences of Order 37, Rule 2, C.P.C. shall follow and the allegations in the plaint shall be deemed to be admitted by the defendant and the plaintiff shall be entitled to a decree. The learned single Judge has in principle agreed with this proposition and has therefore allowed in the interest of justice the defendant to amend the application so as to include prayer for appearance in the suit. This according to the learned counsel for the plaintiff could not be done because on 19-10-1976 when the order was made a right had accrued to the plaintiff to obtain a decree as there was no application within the meaning of law which could entitle the defendant to appear and defend the suit. It is pertinent to mention that such an application is to be made by the defendant within thirty days from the date of service of the summons or where summons is not served within thirty days from the date of his first appearance in the court. The application to defend the suit dated 30-4-1976 made by the defendant was within time, and was governed by Art.159 of the Limitation Act. On the date when the amendment was permitted by the learned single Judge to be made in the application, a fresh application would have been barred under law. He has relied on an authority of this Court viz.: Ahmad Joo v. Jaffar Malik, AIR 1958 JandK 21 for the proposition that mortgagors cannot be permitted to amend their plaint in such a manner as to include redemption of those parts of the mortgaged land in respect of which their right to institute the application under the Jammu and Kashmir Restitution of Mortgaged Properties Act has become barred. In the present case a fresh application on 19-10-1976 had become barred as the limitation to file the application had expired, therefore, the order of the learned single Judge is not correct.

(2.) Learned Counsel for the defendant has on the basis of an authority of this Court viz: Krishen Lal v. Jagdish Dutt Badyal, AIR 1962 JandK 47 submitted that leave to defend if granted is not a judgment within the meaning of Cl.12 of the Letters Patent and the appeal, therefore, is incompetent.

(3.) We have heard the learned counsel for the parties at length.