The provisions of Order 37 Rule 3 (1) C. P. C. regarding the entering of appearance by the defendant are directory and not mandatory. Therefore, a delay in filing the application for leave to defend the suit can be condoned by the court under Order 37 Rule 3 (7) C. P. C.

( 1 ) THIS is a defendant s appeal against the order of Sultan Singh, J. by which he refused leave to defend the suit under Order 37 of the Code of Civil Procedure to the defendant No. 1 appellant and defendant No. 2 (who is respondent No. 2 in the appeal) and thereafter passed a decree for Rs. 50,247-73 against the appellant and respondent No. 2.

( 2 ) IT is unfortunate that when it comes to setting the matters in a spirit of mutual accomodtion the public sector and the Government undertakings seem to behave in as small and petty a manner as unfortunately the individuals sometimes do. The allegation in the plaint is that the respondent No. I which is being managed by West Bengal government had supplied certain goods to the appellant. The goods were negotiated by respondent No. 2 on behalf of the appellant. The goods supplied were worth over 6 lakhs, and according to the plaintiff the balance amount of over Rs. 50,000. 00 has not been paid. Though at one stage in 1976, it appears that the appellant had acknowledged, according to the plaintiff, to pay this amount but asked for time because they were in financial difficulty, the appellant, it is alleged is now apparently refusing to pay. Appellant has also made counter claims on account of alleged non-delivery of goods in time and also because of the excess charges in transport. These allegations on merit need not detain us because they have not been examined on merits by the Court. We just noticed this aspect and were wondering whether better sense should not even now prevail with the parties so that they could settle matters amicably rather than resort to the destructive litigation, which will cost the public exchequer more than the amount in dispute. The court can however do no more than point out the direction and leave it to the parties to work out the details.

( 3 ) SUMMONS of the institution of suit were served on defendant No. 1, appellant on 9. 4. 1970. The summons specifically asked the appellant to put in appearance within 20 days. On 24. 4. 1979 the appellant moved on 1. A. 1476/79 which purported to be under Section 21 C. P. G. taking the plea that this court had no jurisdiction. Fortunately for the appellant it also specifically mentioned in the very same application that defendant though it does not submit to the jurisdiction of the court, but is putting in his appearance in order to avoid an ex-parte order at the back of the defendant. The matter thereafter came up ultimately before the Deputy Registrar on 10. 5. 1979 and plaintiff accepted notice of 1. A.-1476/79. On 12. 7. 1979 1. A.- 2285/79 was filed by the plaintiff for issue of summons of Judgment in Form. IV A in appendix B. No order however, was passed on it and the application remained pending in the Registry. On 10. 8. 1979 1. A. 2840/79 was filed by the appellant under Order 37 Rule 3 G. P. C. seeking leave to defend the suit. The learned Judge has held that as no appearance was entered by the defendant there was no question of permitting the appellant to defend the suit. That is why he refused leave and decreed the plaintiff s suit. Hence the appeal.

( 4 ) ORDER 37 Rule 3 (1) of the Code of Civil Procedure provides that the defendant may at any time within 10 days of the service of summons under Rule 2 enter an appearance either in person or by pleader and shall file in court an address for service of notice on him. 1. A. 1476/79 was filed on 24. 4. 1979 not within 10 days but within 20 days, i. e. within the time the summons had mentioned. Evidently the learned Judge rightly did not entertain any objection to nor did the plaintiff object that the appearance should have been entered within 10 days. In view of 20 days mentioned by summons from this court the plainiff could not insist upon the appellant entering appearance before 20 days. But what has been held against the appellant is that though on 24. 4. 1979 it was within 20 days of service of summons on 7. 4. 1979 when in Jaw th