ORDER

The defendant filed present Writ Petition being aggrieved by order dated 17.01.2022 whereby an application under Order 37 Rule 5 of C.P.C. has been rejected.

[2] The plaintiff summery suit against this petitioner under Order 37 Rule 1 and 2 of C.P.C.for recovery of Rs.4,45,244/- with court fees. The summon was issued to the defendant on 11.11.2021 and he appeared on 23.11.2021,thereafter the petitioner/defendant did not appear, the Court fixed the case for pronouncement of judgment and again issued summon as contemplated under Order 37 Rule 4 of C.P.C. which was served to the defendant on 14.12.2021. The defendant appeared on 22.12.2021 and application was filed seeking permission to defend. The said application came up for consideration on 17.01.2022 but the Court has rejected the application on the ground that the notice served to the defendant but he did not file an application seeking leave to defend within time.

[3] It is correct that after receipt of first summon on 11.11.2021, this petitioner appeared before the Court but did not file any application seeking leave to defend thereafter the second summon was issued under Order 37 Order 3 sub Rule 4 of C.P.C.in form No.Form No.4A by way of affixture on 14.12.2021 and after receipt of that summon, the petitioner appeared on 22.12.2021. Under Order 37 Rule 3 sub Rule 5 of C.P.C. gives right to defendant to disclose the facts as may be deemed sufficient to entitle him to defend before the Court within 10 days from the service of such summon. The petitioner appeared on 22.12.2021 i.e. within 10 days with an application seeking leave to defend, therefore, the Court has wrongly appreciated the provision, hence, order dated 17.01.2022 is set aside. Matter is remitted back with direction to the learned Court to pass an order on merit on application seeking leave to defend on the next date of hearing.

Certified copy as per rules.

(VIVEK RUSIA) JUDGE Praveen