The court upheld that a minor delay in filing a leave to defend application can be condoned if sufficient cause is demonstrated, affirming the discretionary nature of procedural rules in civil litigation.

ORDER :

1. The civil revision petitioner is the plaintiff in the suit. The revision impugnes the correctness of the order passed by the learned I Assistant City Civil Judge in I.A.No.1 of 2019 in I.A.No.10243 of 2018 in O.S.No.3066 of 2018.

2. For the sake of convenience, the parties will be referred to as per their ranks in the suit.

3. O.S.No.3066 of 2018 is an under-chapter suit. It is presented on the foot of a promissory note for recovery of a sum of Rs.4,00,000/- together with interest. The plaintiff claimed that, despite a demand to repay the amount, the first defendant, who is the executant of the pro- note, and the second defendant, who is its oral guarantor, did not honor the same.

4. Summons were served on the defendants as contemplated under Order XXXVII.

5. The defendants entered appearance through a counsel. They also gave a notice of appearance. Thereafter, they filed an application in I.A.No.10243 of 2018 seeking leave to defend.

6. In the counter to the said application, the plaintiff pleaded that the leave to defend application is not maintainable, since the defendants have not filed the same within 10 days from the date of service of summons for judgment. He pointed out that summons for judgment had been served on 30.07.2018, and the defendants ought to have filed the leave to defend application within 10 days. However, the leave to defend application has been filed only on 16.08.2018, and the same was not duly accompanied by an application to condone the delay in applying for leave to defend the suit, as prescribed under Order XXXVII Rule 3(7).

7. In order to rectify the error, the defendants took out an application seeking the court to condone the delay of 6 days in filing the leave to defend application. This application was numbered as I.A.No.1 of 2019. This application too, was resisted by the plaintiff. He pleaded that the defendants cannot file an application for leave to defend, without having filed a prior application under Order XXXVII Rule 3(7) of the Code of Civil Procedure. He pleaded that a valuable right has crystalised in his favour on account of the defendants not having filed the application under Order 37 Rule 3(5) in time.

8. The learned Trial Judge agreed with the defendants and condoned the delay of 6 days in filing the leave to defend application. Aggrieved by the same, the plaintiff is on revision before me.

9. I heard Mr.P.Sunil for the civil revision petitioner and Mr.Balaguruswamy for the respondents.

10. Mr.P.Sunil, placing reliance upon the judgment of the Punjab and Haryana High Court in Sandeep Kumar v. Satpal , MANU/PH/1703/2017, argues that an application under Order XXXVII Rule 3(5) is not maintainable, when it is not accompanied by an application under Order XXXVII Rule 3(7) of the Code of Civil Procedure. He urges that as the application for leave to defend was filed on 16.08.2018, and the application filed to condone the delay in filing the application for leave to defend having been presented after 372 days on 21.08.2019, the court below erred in not treating the period of delay in a proper perspective.

11. Per contra, Mr.Balagurusamy urged that the defendants were not in station after having given him instructions to appear in the matter. This is a sufficient cause for the purpose of condonation of delay. He further points out as the learned Trial Judge has exercised his discretion and condoned the delay. Therefore, the revision against the sa