( 1 ) THIS appeal inter alia impugns the order of the learned Single Judge passed on 28th February, 2003 dismissing IA No. 11624/2002 in Suit No. 604/2000.

( 2 ) THE appellant in that application had prayed that the copies of the plaint and other documents were not supplied to the defendants/appellants and time to file application for leave to defend be extended. Mr. Kataria learned counsel appearing for the appellant has contended that no where on record it has been mentioned that copies of the plaint and documents have been supplied to the appellant and, therefore, there was non-compliance of Rule 3 of Order XXXVII of the CPC. Rule 3 of Order XXXVII cpc is as under:-

( 3 ) PROCEDURE for the appearance of defendant.- (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

( 4 ) ON the basis of aforesaid, Mr. Kataria has contended that it was mandatory on the part of the respondent to have served on the appellant a copy of the plaint and annexures thereto and as from the record, it is apparent that the plaint and annexures were not supplied to the appellant, the mandatory provision of rule was not complied with and, therefore the period to file application for leave to defend application cannot be counted from that date.

( 5 ) ON the other hand, learned counsel for the respondent has contended that the appellant had put in appearance but did not raise the issue of non-supply of the copies of plaint and annexure in any of the proceedings after 24th April, 2002. In the said order the learned Single Judge has recorded that the defendants/appellants have moved the application for supply of the copies of the documents which are not annexed with the summons of the suit, although he has entered appearance as a matter of precaution. On that date the learned Single Judge directed that copies of the documents be furnished within one week. The later part of the order is important which reads as under:-

( 6 ) HOWEVER, this would not be treated as an excuse for late filing of the leave to defend application in case the summons for judgment are served on the defendant.

( 7 ) ON the basis of the aforesaid, it was contended by Mr. Chhabra learned counsel appearing for the respondent that once the appellant has entered into appearance and summons for judgement in appropriate form was served upon him, the Court has no power to extend the time to file application for leave to defend.

( 8 ) WE have given our careful consideration to the arguments advanced by the learned counsel for both the parties. The short controversy is with regard to whether compliance of Rule 3 Order XXXVII CPC was done by the respondent or not. As observed earlier when the appellant appeared on 24th April, 2002, he had moved an application that the copies of the plaint and documents had not been supplied to him and he was entering appearance as a matter of abundant caution. If a person who has taken such an abundant precaution to appear in the suit and has filed an application for supply of copies of the plaint and documents, it is inconceivable that if the same were not given to him, he would not have made an application or would not have agitated the issue again in the Court. From the impugned order, we find that the learned Single Judge has observed that after 24th April, 2002 the case was adjourned to 26th July, 2002 where the appellant himself was present. On that date it was not protested by the appellant that the documents and plaint had not been supplied. It is also to be noticed that on 27. 1. 2002 the application of summons for judgment was disposed of by the learned Single Judge in the presence of the counsel for the defendants/appel