Applicability of the provisions of Limitation Act in extending time by the Court.

This revision petition is filed by the defendant against the order of the Principal Judge, City Civil Court, refusing to extend time for leave to appear and defend the suit instituted by the respondent under the summary provisions of Order 37 of the Civil Procedure Code. The suit was laid for the recovery of Rs. 1905 due on a promissory note executed by the defendant for Rs. 6000 on 4th June, 1951. The suit amount was claimed after giving credit for Rs. 4,700 paid by the defendant on various dates subsequent to the execution of the promissory note. Summons was issued in form No. 4 in Appendix B of the Civil Procedure Code, and the defendant was called upon to obtain leave to appear and defend within ten days from the service of the summons, if need be. Although the defendant filed a Vakalat on the 29th January, 1952, he did not make an application for leave to appear and defend the suit. He merely filed a written statement on the 13th March, 1952.

When the suit came on for hearing on that date, the plaintiff asked for a decree as the defendant had not applied for leave to defend the suit. Thereupon the defendant filed an application for permission to defend the suit and also for excusing the delay in doing so.

This was opposed by the plaintiff. It was contended on behalf of the plaintiffs that the Court had no jurisdiction to enlarge the time for application for leave to defend and secondly the affidavit in support of the petition to excuse delay, did not disclose sufficient cause to condone the delay. The reason given by the defendant in the application to excuse delay was that he mislaid the summons and focussed all his attention on a garnishee summons and never noticed the circumstance that the suit had been filed under Order 37, rule 5, Civil Procedure Code.

The trial Court while overruling the objection as to the jurisdiction, dismissed the petition holding that he did not believe the defendant’s story that the summons was mislaid and that the neglect was so culpable as to disentitle the defendant to all relief. The aggrieved defendant has filed this revision petition.

Mr. Subramaniam urged that the reasons given by the learned City Civil Judge for dismissing the petition are untenable. On the other hand Mr.Krishnaswami maintained that the view of the trial Court that it had jurisdiction to extend time and to condone delay is erroneous, and there is no basis for this under the provisions of Order 37, and it is not necessary to canvass the finding on the merits.

So the main point for consideration is, whether it was competent for the trial Court to extend time for filing an application, for leave to defend. In support of the view that the Court has got power to enlarge time in such cases, reliance was placed on the ruling of Mack, J., in Murahari Rao v. Bapayya1. In that case a suit was filed on a promissory note under under Order 37, rule 2, Civil Procedure Code. Summons was issued to the defendant calling upon him to apply within ten days for leave to defend if he should choose to do so. On the 11th day after service of notice, the defendant appeared and asked for leave to defend. The District Munsiff in whose Court, the suit was instituted granted him leave, asked for disagreeing with the objection raised on behalf of the defendant that there was no provision in Order 37 of the Civil Procedure Code to excuse delay or to extend time beyond the ten days prescribed in the summons. It may be stated here, incidentally, that the ten days time mentioned in the summons in Form No. 4 is prescribed by Article 159 of the Limitation Act.

In a revision petition against the order of the District Munsiff, Mack, J., laid down that if under Order 37, rule 4, a Court could set aside a decree under special circumstances, it can a fortiori have power to give the defendant leave to defend although the time mentioned in the summons had expired. I must express my respectful disagreement with this view of the learned Judge.

There can be no