The Hon’ble Sri Justice C.V.Nagarjuna Reddy Civil Revision Petition No.583 of 2013
Dated 04.09.2014
Between:
J.Muralidhar and another …Petitioners And O.Vijayalakshmi …Respondent Counsel for the petitioners: Mr.R.Chandrasekhar Reddy
for Smt.R.Mahati Chandrashekar
Reddy
Counsel for the respondent: Sri N.Vijay The Court made the following:
Order:
This Civil Revision Petition is filed against Order, dated 22-11-2012, in IA.No.1046 of 2011 in OS.No.196 of 2011, on the file of the Court of the learned I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad.
The petitioners have filed the above- mentioned suit for recovery of money based on purported cheques and agreement, dated 11-11- 2009, allegedly, executed by the respondent/defendant. The said suit was filed as a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 (CPC). While it is the case of the petitioners/plaintiffs that the suit summons were received by the respondent on 14.02.2011, in her affidavit filed before the lower Court, the respondent has stated that the summons were received by her on 18th or 19th March, 2011, and that she entered her appearance, through her Counsel, on 21-03- 2011. Be that as it may, the respondent has filed IA.No.1046 of 2011 on 19.04.2011 under Order XXXVII Rule 3 (5) read with Section 151 CPC for leave to defend the suit. The petitioners filed a counter-affidavit wherein they have specifically pleaded that the suit summons were served on the respondent on 14-02-2011; that therefore, she should have filed her appearance within ten days as contemplated under Order XXXVII CPC and that as the respondent failed to enter her appearance within the said time and filed the application for leave to defend the suit, such leave cannot be granted. However, the lower Court, by the order under revision, has allowed the said application.
At the hearing, Mr.R.Chandrashekar Reddy, learned Counsel for the petitioners, strenuously contended that the lower Court has committed a serious procedural illegality in ignoring the objections raised by the petitioners in the counter- affidavit. He has drawn the attention of this Court to the provisions of Order XXXVII Rule 3 (5) CPC and submitted that in order to seek leave to defend, the defendant shall apply within 10 days from the date of service of summons and that, admittedly, such application was not made by the respondent within the stipulated time.
Mr.N.Vijay, learned Counsel for the respondent, while opposing the said contention, has submitted that according to the version of the respondent, the summons were received on 18th or 19th March, 2011, and that the application for leave was filed thereafter. He has further stated that the provisions of sub-rule (5) of Rule 3 of Order XXXVII CPC are not mandatory and that in appropriate cases, the Court can extend the time stipulated for applying for leave.
At the outset, it needs to be observed that the order of the lower Court discloses that it has failed to even refer to the filing of the counter-affidavit by the petitioners much less adverting to its contents. When the petitioners have raised a serious objection relating to the very entitlement of the respondent to apply for leave on the ground that he has failed to make such application within the stipulated time of 10 days from the date of receipt of summons as envisaged under sub-rule (5) of Rule 3 of Order XXXVII CPC, it was incumbent upon the lower Court to refer to this objection and deal with the same. The lower Court has made a perfunctory approach in failing to notice the contents of the counter-affidavit wherein substantial objection against granting leave has been raised by the petitioners. In view of the same, I am not inclined to render a finding on the submission made by the learned Counsel for the respondent that the provisions of sub-Rule (5) of Rule 3 of Order XXXVII CPC are not mandatory. This aspect is left to the lower Court to deal with after hearing both parties.
For the above-mentioned reasons, the Civil Revision Petition is allowed and Order, dated 22-11- 2012, in IA.No.1046 of 2011 in OS.No.196 of 2011, on the file of the Court of the learned I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, is set aside. The case is remanded to the lower Court for fresh disposal of IA.No.1046 of 2011 based on the pleadings of the respective parties raised in their affidavit and the counter-affidavit and after hearing the Counsel for both parties. The lower Court shall dispose of the said application within two months from the date of receipt of this order.
(C.V.Nagarjuna Reddy, J)
Dt: 4th September, 2014
LUR