The subsequent filing of a written statement does not invalidate an application under Chapter XIII-A of the Original Side Rules if the summons thereof was taken out within 10 (ten) days after receipt of the notice of appearance of the defendant.

( 1 ) THIS appeal arises out of a decision granting a decree on admission under Chapter XIII-A in this suit on August 5, 2003. The first preliminary objection that was taken with regard to the validity of the decree is based on Rule 3 proviso of Chapter XIII-A of the Original Side Rules (OS Rules ). Mr. Pal submits that unless the Master's Summons under Rule 4 of Chapter XIII-A is taken out within 10 days from the date of receipt of notice of appearance where a written statement has been filed, the application under Chapter XIII-A shall not be maintainable or permissible. According to him, the writ of summons was served on May 22, 2003 and the defendant-appellant had entered appearance and served notice on May 25, 2003 whereas Master's Summons was taken out on June 11, 2003 and the written statement was filed on July 28, 2003.

( 2 ) MR. Pratap Chatterjee ably assisted by Mr. Banerjee points out that where a written statement is filed after the Master's Summons is taken out the filing of the written statement cannot have the effect of making the application which was otherwise valid on the date of filing, infructuous. The principal rule does not provide for any time limit. The proviso qualifying the period of 10 days as time limit, which is not provided in the principal rule for a deadline of 10 days from the date of appearance as sacrosanct. Issues of determination :

( 3 ) IN this case, we are called upon to decide two broad issues. First, whether the subsequent filing of written statement would invalidate an application under Chapter XIII-A of the Original Side Rules if the summons thereof was taken out 10 (ten) days after receipt of the notice of appearance of the defendant? Second : whether leave to defend could be denied on the face of the defence raised by the defendant. 3. 1. We would like to answer the first question first and then to proceed to decide the second issue if the first question is decided against the appellant. The First Issue:

( 4 ) BEFORE we proceed to deal with the matter further, we may refer to Rule 3 of Chapter XIII-A as quoted below : 3. When application to be made. Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the amount claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and costs : provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, Rule 18". Effect of proviso to Rule 3 Chapter XIII-A : 4. 1. The consequence of non-filing of written statement is provided in Rule 2 of Chapter IX. Mr. Pal had points out, relying on these provisions, that the written statement can be filed within the time fixed or within the time extended by Court in the manner provided therein. Therefore, filing of the written statement would have an impact, which would negative the right of the plaintiff to proceed under Chapter XIII-A in view of proviso to Rule 3. 4. 2. In order to appreciate the situation we may scan the expression used in Rule 3. The provision proceeds to prescribe that an application shall not be permissible unless the summons is taken out within 10 days of receipt of notice of entering appearance under Chapter VIII Rule 18 against a defendant who has filed a written statement. The qualification is provided against a defendant who has filed a written statement, the application under Chapter XIII-A shall not be permissible unless the summon