The court established that the court has discretion to condone the delay in appearance under special circumstances, such as being misled by the date mentioned on the summons.

1. - This is a defendant's revision under Section 115 of the Code of Civil Procedure against the order dated July 25, 1980 of the District Judge, Bhilwara passed in Civil Original Suit No. 6 of 1980.

2. A few facts leading to this revision may be noted, The plaintiff non-petitioner instituted a suit for Rs. 14,980/- on the basis of two pro-notes, which are said to have been executed by the defendant-petitioner. The suit appears to have been filed under Order 37, Rule 2, C.P.C. The summons dated January 28, 1980 was issued and served on the defendant-petitioner on January 29, 1980. On the to of the summons TARIKH PESHI mentioned was March 7, 1980. The defendant went to engage a counsel for appearing in court for March 7, 1980. After seeing the summons, the counsel told him that he should have appeared with in 10 days of the service of the summons. The defendant appeared in Court on March 7, 1980, and submitted an application under Order 37, Rule 3(7), C.P.C. stating the cause for not appearing within 10 days from the date of service of the summons and prayed for excusing the delay caused in entering appearance in Court. The reason that was mentioned in the application was that the defendant was misled by the date which was mentioned on the top of the summons as March 7, 1980. This he took to be the date on which he was required to appear in Court. The plaintiff non-petitioner opposed the application. The learned District Judge. Bhilwara by his order dated July 25, 1980 dismissed the application of the defendant-petitioner holding that there was no sufficient cause for condoning the delay under Order 37, Rule 3(7), C.P.C. Feeling aggrieved, the defendant has come up in revision to this Court under Section 115 of the Code of Civil Procedure .

3. A show cause notice was issued to the plaintiff-defendant. In pursuance of that Mr. J.S. Saluja, has appeared on behalf of the non-petitioner.

4. I have heard Mr. D.S. Shishodia, learned Counsel for the petitioner and Mr. J.S. Saluja, learned Counsel for the non-petitioner. It was stated by both the learned Counsel appearing for the parties that the revision petition may finally be disposed of and this court while issuing show cause notice specifically mentioned that "why this revision petition be not admitted and allowed."

5. Learned Counsel appearing for the petitioner contended that the next date fixed for appearance in the court was March 7, 1980 which was mentioned on the top of the summons dated January 28, 1980 which was served on January 29, 1980, misled him and it constituted sufficient cause for condoning the delay. He further submitted that the order under revision if allowed to stand would occasion a failure of justice and, therefore, it should be interfered with. On the other hand, learned Counsel appearing for the non-petitioner argued that the cause which has been relied on by the defendant is not a sufficient one for condoning the delay and that there are no grounds for interfering with the order under revision at this stage.

6. I have considered the rival contentions of the learned Counsel appearing for the parties.

7. The provisions of O. XXXVTI. Rule 2, C.P.C. as then existed came up for consideration before a learned single Judge of the Madras High Court in Abdul Rahim v. Abdul Selam, AIR 1949 Madras 742 . It was observed as follows:

"It is true that there is no specific provision in O. XXXVII, Rule 2 or in the Limitation Act empowering a Court to condone a delay in appearance beyond the ten days prescribed by the summons in form No. 4. Technicality can be met with technicality, because the default recited in this summons for non-appearance within ten days is that the plaintiff will be entitled after the expiration of this period to obtain a decree with costs. It is common ground that no decree was passed by the court when the defendant filed his application for leave to defend on the 11th day. Furthermore, under O. XXXVII, Rule 4 even after decree the Court may,