Case Note & Summary
The matter arose from a writ petition filed by the defendant in a summary suit challenging the trial court's order rejecting his application for leave to defend. The respondent, Housing Development Finance Corporation Limited, had filed a summary suit under Order XXXVII Rule 2 of the Code of Civil Procedure, 1908, for recovery of Rs.7,45,571/-. The petitioner-defendant was served with summons for judgment and subsequently applied for leave to defend beyond the ten-day period prescribed under Order XXXVII Rule 3(3) (Bombay amendment). This application was not accompanied by any application for condonation of delay. The trial court, by order dated 10 October 2017, rejected the application solely on the ground that it was not moved within the stipulated time and lacked a prayer for condonation. The petitioner then approached the High Court under its writ jurisdiction. The core legal issue was whether a court must reject a belated leave application solely because it was filed beyond the statutory period and without a simultaneous condonation application, or whether the court should afford an opportunity to the defendant to seek condonation under Order XXXVII Rule 3(5) CPC. The petitioner argued that the court has discretion under Rule 3(5) to excuse delay upon sufficient cause being shown, and the trial court should have allowed the filing of a condonation application. He relied on State of M.P. v. Pradeep Kumar, IDBI Trusteeship Services Ltd. v. Hubtown Ltd., and Madhao Sarode v. Jotiba Dhyan Upasak Shikshan Sanstha. The respondent contended that the dismissal was justified as the leave application was filed after more than a month without any prayer for condonation, citing Ragho Singh v. Mohan Singh and Gaurav Singhania v. Matrix Agri Science Pvt. Ltd. The High Court, per Justice A.S. Chandurkar, observed that Order XXXVII Rule 3(5) expressly empowers the court to excuse delay in applying for leave to defend, and that the Supreme Court in State of M.P. v. Pradeep Kumar had held that the requirement of an accompanying condonation application under analogous provisions is directory and the defect is curable. Applying that principle, the High Court held that the trial court's outright rejection was unwarranted. The writ petition was allowed; the trial court's order was set aside and the leave application was restored. The defendant was directed to file an application under Order XXXVII Rule 3(5) CPC within three weeks for condonation of delay, which the trial court was to decide on merits. If condonation was granted, the leave application was to be decided on merits. No order as to costs.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Condonation of Delay - Code of Civil Procedure, 1908, Order XXXVII Rule 3(5) - The trial court rejected the defendant's application for leave to defend solely because it was filed beyond the ten-day period and without an accompanying condonation application - Held that the court has the power to excuse delay under Rule 3(5) upon sufficient cause being shown, and that the deficiency is curable; an opportunity must be given to the defendant to file a condonation application before deciding the leave application on merits - (Paras 5-9).
Issue of Consideration
Whether the trial court was justified in rejecting the application for leave to defend solely on the ground that it was filed beyond ten days and without a condonation of delay application, and whether an opportunity to apply for condonation should be provided.
Final Decision
The writ petition is allowed. The order of the trial court dated 10/10/2017 is set aside. The application for leave to defend is restored. The defendant is granted three weeks to file an application under Order XXXVII Rule 3(5) CPC for condonation of delay, which the trial court shall consider on merits; upon condonation, the leave application shall be decided on merits.
Law Points
- Court has power to excuse delay in applying for leave to defend under Order XXXVII Rule 3(5) CPC on sufficient cause
- Non-filing of condonation application with belated leave application is a curable defect
- Opportunity to file condonation application must be granted before deciding leave application on merits
