Gujarat High Court
Metro Ceramics Private Limited vs Talpole Chartering Limited on 28 September, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/13894/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13894 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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METRO CERAMICS PRIVATE LIMITED....Petitioner(s)
Versus
TALPOLE CHARTERING LIMITED....Respondent(s)
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Appearance:
MR DHAVAL D VYAS, ADVOCATE for the Petitioner(s) No. 1
MR JR DAVE, CAVEATOR for the Respondent(s) No. 1
MR.VISHAL J DAVE, CAVEATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 28/09/2015
CAV JUDGMENT
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HC-NIC Page 1 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT
1. Heard learned advocate Mr. Dhaval D. Vyas for the petitioners and learned advocate Mr. Kapoor with learned advocate Mr. Vishal J. Dave for the respondent. Perused the record.
2. Petitioners herein are original defendants whereas respondent is original plaintiff in Summary Suit No. 23 of 2013 before the Court of Additional Senior Civil Judge of Rajkot. Parties are referred in their original capacity.
3. It is undisputed fact that plaintiff has filed such suit as per the provisions of Order XXXVII of the Code of Civil Procedure (herein after referred to as "Code") as Summary Suit. Summons of which, was alleged to be served upon the defendants on 08.08.2014 and, therefore, they have to file their appearance on or before 18.08.2014 pursuant to the provisions of Order XXXVII Rule 3 of the Code. However, since such summons were not accompanying with the pleadings and notice was not disclosing the requisite information and thereby it cannot be considered as a proper proof of service, the Court has issued another notice which was alleged to be served on 14.08.2014 upon one Sureshbhai Joshi. Therefore, petitioner - defendant has to file his appearance only on 24.08.2014. However, when defendants have filed their appearance on 25.09.2014 i.e. after 32 days, respondent has prayed to condone the delay in filing appearance by filing an application at exhibit 33 on 06.05.2015 considering that there is delay of 38 days, probably considering the delay from 08.08.2014. Thereafter, by impugned order dated 10.08.2015 such appearance was refused to accept on record by not condoning the delay in filing appearance in prescribed period of limitation.
4. Therefore, defendant has challenged such order and prayed Page 2 of 17 HC-NIC Page 2 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT to stay the further proceedings of Summary Suit No. 23 of 2013. Respondent herein being plaintiff has resisted this petition by filing caveat on 24.08.2015.
5. If we consider the matter on its own merits, the fact remains that unfortunately the trial Court has refused to condone the delay and to accept the appearance purely on technical ground that, since it is not filed within 10 days, it cannot be accepted. As against that learned advocate Mr. Vyas has submitted that in fact Order XXXVII Rule 3(7) of the Code permits the Court to excuse the delay by the defendants in entering an appearance and even applying to leave to defend the suit.
6. If we peruse the factual details of the case, in addition to what is stated herein above with regard to service of notice, the fact remains that in all such cases practically proof of service is a crucial evidence for decreeing the suit exparte against defendant only on the ground that though notice is served, defendant has failed to appear. For the purpose, the fact remains that initially the Court has issued improper notice and thereafter another notice was issued. Therefore number of days to be counted is certainly needs to be counted from the date of service of proper notice. Similarly, there must be proper proof of service on record. For the purpose reference to the provision of Order V Rule 9, 12 and 13, 16 and 18 etc. are material. The basic rule for service of summons is very much clear that the summons shall be delivered and served upon the defendant personally or on his agent. However, provisions of Order V Rule 12 specifically makes it clear that whenever practical, the service shall be made upon the defendant unless he has an agent to accept service in which case the service on such agent is sufficient. It is not disputed fact that in present case notice Page 3 of 17 HC-NIC Page 3 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT is not served upon the defendant but served upon a security persons present at the place where notice was served. It is not disputed fact that business from such premises was closed before 2 years from the date of plaint and therefore in any case service upon security person of the property where defendant is neither residing nor carrying out his business cannot be treated as a proper service. Sub - Rule (3) of Rule 9 of Order V makes it clear that the service of summons may be made by delivering the same to the defendant, or his agent empower to accept the service. Therefore, when there is a provision to serve to the agent, upon reading of all Rules of Order V makes it clear that there must be empowered agent to accept the notice by particular litigant. Rule 13 of Order V also though permits to serve the notice upon any manager or agent it emphasis that, such person must be carries on such business or work for such person at the time of service. Thereby if defendant firm is not functional, at the place where notice was served and when security guard of such place accept the notice, then also such service is not proper service. However, defendant has categorically submitted that person upon whom notice was served is not serving under him but when he conveyed the details of such notice to the defendant, defendant has managed to appear before the Court at the earliest since he was out of station at the relevant time. In view of such fact practically there is an issue regarding proper proof of service. There must be proper endorsement as provided under Order V Rule 18 whereas plaintiff has contended that when there is rubber stamp of the defendant company, it should be treated as a proper service upon defendant. However, when there is a dispute regarding proper proof of service on record, it would certainly be reasonable and sufficient ground for the defendant for not filing his appearance within prescribed period of limitation which is only 10 days and thereby appearance is filed within couple of weeks, in this Page 4 of 17 HC-NIC Page 4 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT case within 38 days there is nothing in law which prevent the Court to condone such delay if sufficient cause is shown, as per order XXXVII Rule 3(7).
7. So far as consideration of sufficient cause is concerned, the law is well settled and discussed in the case of Dakshin Gujarat Vij Company Ltd. through Managing Director Vs. Amardeep Association, Navsari and others reported in 2013 (2) GLR 1399. The Division Bench of this Court has observed as under and such observation has been approved by Hon'ble the Apex Court in SLP (Civil) No. 12142 of 2013 between the same parties. Para Nos. 14, 25, 26 & 27 of such judgment reads as under.
"14. There are catena of judgments, more particularly when sufficient cause and reasonable ground are not defined under the law, that in general, the dispute shall be resolved on its own merits rather than technicalities and that, therefore, sufficient cause and reasonable ground for condonation of delay cannot be defined in any narrow manner and thereby there cannot be straitjacket formula that what is sufficient cause and what is reasonable ground for condonation of delay, it goes without saying that sufficient cause and reasonable ground may be different from case to case and though particular cause or ground may not sufficient and reasonable to condone the delay in a particular case, similar ground or cause may be sufficient and reasonable enough to condone the delay in any other given case, if on judicial scrutiny of matter, it is so found by the competent Court to condone such delay.
25. As against that, if we look into the judgments cited by the applicant, it becomes clear that generally Courts should be reluctant to shut out a consideration of the case on Page 5 of 17 HC-NIC Page 5 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT merits on the grounds of limitation or any other similar technicality (AIR 2012 SC 640 - Abdul Gafoor Vs. State of Bihar); if there is delay in filing petition, due to opinion of the advocate on record and the Solicitor General etc., such delay deserves to be condoned (AIR 2011 SC 428 Delhi Development Authority Vs.Bhola Nath Sharma); there is a strong arguable case on behalf of the appellant and, therefore, the Court should decide the matter on merit by giving the expression sufficient cause a pragmatic justice-
oriented approach (AIR 2011 SC 977 Union of India Vs.Giani); the meaning of the word sufficient is adequate or enough, inasmuch as may be necessary to answer the purpose intended and, therefore, word sufficient embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application (AIR 2011 SC 1150 Parimal Vs.Veena); if case file has to be routed from various departments before decision to file appeal, it is sufficient cause for condonation of delay (AIR 2010 SC 1445 State of J & K Vs.Mohmad Maqbool Sofi); while deciding application for condonation of delay, Court cannot go into the merits of the case, if averments made in the application is sufficient to condone the delay, there is no hesitation to condone such delay (AIR 2009 SC 1927 State of Jharkhand Vs.Ashok Kumar Chokhani); the expression sufficient cause must receive liberal construction to advance substantial justice even condoning delay of more than 6500 when question of law involved (AIR 2009 SC 2577 State of Karnataka Vs.Y.Moideen Kunhi); and what counts is not length of delay, but sufficiency of cause and that what constitutes Page 6 of 17 HC-NIC Page 6 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT sufficient cause cannot be laid down by hard and fast rules [AIR 2009 SC (Supp.) 695 State (NCT of Delhi) Vs.Ahmed Jaan]; delay of more than six years can also be condoned to avoid miscarriage of justice (AIR 1984 SC 1744 O.P. Kathpalia Vs. Lakhmir Singh (Dead) by 3 Judges bench of Apex Court).
26. Moreover, atleast in AIR 2008 SC 1688 Sinik Security Vs.Sheel Bai, AIR 2009 SC 2170 D.D. Vaishnav Vs.State of M.P. and AIR 2009 SC (Supp.) 195 Commissioner, Nagar Parishad, Bhilwara Vs.Labour Court, Bhilwara, the Apex Court has condoned inordinate delay (769 days, 589 days and 178 days respectively) even by imposing some costs upon the applicant.
27. In AIR 1987 SC 1353 Collector, Land Acquisition, Anantnag & Anr. Vs. Mst.Katiji & Ors., the Apex Court has held as under -
The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
[1 "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application Page 7 of 17 HC-NIC Page 7 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT within such period."]
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing-on- the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve Page 8 of 17 HC-NIC Page 8 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits."
8. If we perused the application at exhibit 33 it cannot be said that there is no sufficient cause shown by the defendant for not filing the appearance in prescribed period of limitation which is only 10 days.
9. Petitioner has also filed an affidait dated 29.09.2014 before the trial Court that Chunilal G. Bhanwadia is full time sitting at Vankaner and handling business at Rajkot, whereas office of the defendant company was closed since last two years and probably security guard has taken a summons of the suit and that he could not manage to hand over the same to the concerned person of the company. It is further stated on oath that thereafter subsequently when paper received by Mr. Bhanwadia, he promptly approached a lawyer Mr. D. R. Chaudhary who in fact refused to contest the matter and, therefore, petitioner could not file an application of leave to defend within time.
10. The record shows that the plaintiff has claimed the principle amount with 18% interest without disclosing the contract to claim such interest and therefore on merits also probably defendant may have a good case either to get leave to defend as there are triable issues before the trial Court.
11. Petitioner has also prayed for an adjournment by his application dated 15.09.2014 disclosing certain defences which Page 9 of 17 HC-NIC Page 9 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT also confirms that there is triable issues. The record shows that in fact on 25.11.2014 plaintiff's Vakalatnama is on record at exhibit 14 and thereby his appearance is already on record. However, on the same day plaintiff has also filed an application for passing decree contending that defendant has with malafide intention failed to file appearance within time as required in law and thus requested to pass exparte decree.
12. If we peruse the impugned order dated 10.08.2015 below exhibit 33, it becomes clear that in fact plaintiff has not filed any affidavit in reply or objections and therefore also there is no reason for the trial Corut for rejecting such a request for condoning the delay of 38 days, though trial Court has categorically recorded that the defendant has in clear terms submitted that the defendant has closed their firm before two years and that Sureshbhai Joshi who has accepted the notice is not an agent of the defendant. Only because of stamp of defendant's firm on notice, it was held that notice was duly served. The trial Court has also failed to appreciate that when defendant was informed about the service of notice as above, he was not available at his residence but he was on tour of South India and therefore as soon as he returned back, he has took necessary steps to appear before the trial Court and, therefore, there would be neither any malafide intention nor negligence in not filing the appearance in time and therefore delay needs to be condoned. It seems that trial Court has mainly rely upon the decision in Special Civil Application NO. 1574 of 2015 dated 06.05.2015 (though it is wrongly noted as 07.01.2015 by the trial Court) for rejecting such an application. However that judgment is considered herein after dealing with other decisions, which makes it clear that only because of such judgment, there is no reason to deny to condone the delay as prayed for.Page 10 of 17
HC-NIC Page 10 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT 12.1 Therefore, now learned advocate Mr. Vyas has contended that such order needs to be quashed and set aside so as to enable the defendant - petitioners to defend the suit.
13. However, learned advocate for the respondent is resisting even such formal order, relying mainly upon the provisions of Order XXXVII, contending that purpose of Order XXXVII would be frustrated, if such petition is allowed and if defendants are allowed to file an appearance after a period of limitation, relying upon the provisions of Sub-Rule (3) of Rule 2 of Order XXXVII of the Code. It is submitted that once an application is not filed in prescribed period of limitation, there must be a decree in favour of the defendant. However, if we read such provision, though it creates an accruement of right in favour of the plaintiff to get the decree, it nowhere confirms that there will be automatic decree as submitted by learned advocate for the respondent. Therefore, there cannot be an automatic decree once appearance is not filed, since law certainly provide for excusing the delay by the defendant both, either in entering appearance or applying to leave to defend. Therefore, if defendants come forward with a prayer to condone such delay, then provisions of Sub - Rule (3) of Rule 2 of Order XXXVII of the Code are not attracted. For deciding an application under Order XXXVII Rule 3(7) of the Code, it is clear and obvious position of law that entitlement of particular right is different than mandatory duty of the Court. Thereby when Order XXXVII Rule 2(3) of the Code entitles the plaintiff to decree, it does not mean that there would be an automatic decree even if defendants have come forward with an application to excuse the delay under Order XXXVII Rule 3(7) of the Code.
14. Learned advocate for the respondent is relying upon Page 11 of 17 HC-NIC Page 11 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT following citations:
(1) The decision in case of Balwant Singh Virdhee vs. Ashwanit Kumar passed in Suit No. 466 of 1998 decided on 09.03.2001 by the Delhi High Court as reported in 2001 IIIAD(Delhi)630, wherein Single Judge of the Delhi High Court has ordered to decree the suit, since defendant has not filed the appearance within prescribed 10 days as per Order XXXVII of the Code.
However, this judgment would not help the plaintiff in the present case because the entire reading of this judgment makes it clear that on the date of decreeing the suit when Court has found that defendant has yet not filed his appearance i.e. for more than two years, the Delhi High Court on its original side has deemed it fit to decree the suit as provided under Order XXXVII Rule 2(3)of the Code. Therefore, when there is no such situation, on the contrary when defendants in the suit before us, i.e. present petitioners have come forward to file appearance within 38 days only, it cannot be said that only because such judgment, the petition needs to be dismissed by confirming the impugned order. It is clear and obvious that in such judgment, the Delhi High Court even on its original side has no reason to deal with the provisions of Order XXXVII Rule 3(7) of the Code, which involves in the present case.
(2) Gopal Das vs. Chander Prakash reported in AIR 1966 J & K 138, wherein full bench of the High Court has while considering the provisions of Order XXXVII of the Code of Civil Procedure with reference to Limitation Act when discussed the provisions of Order XXXVII and factual details of impugned order before it, learned advocate for the respondent is, though relying upon the ultimate decision and result in such First Appeal, submits that pursuant to discussion in para 3 of such judgment application for condonation Page 12 of 17 HC-NIC Page 12 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT of delay is not maintainable. However, learned advocate has failed to refer para 5 of the same judgment wherein full bench of the High Court held that the application filed by the defendant for leave to defend the suit could not be rejected as being barred by limitation but ought to be considered by the trial Judge on merits and, therefore, when the trial Judge has not considered the application on merits but dismissed the same on preliminary ground that it was barred by limitation, the High Court has opined that view taken by the learned Judge is legally erroneous and thereby set aside the order of passing decree in favour of the plaintiff on such technical ground by allowing the appeal and sending the matter back to the trial Court to dispose of the application for leave to defend the suit on merits. It also needs to be recollected here that though it was a First Appeal and thereby though appellant has to pay the Court Fee Stamp, the division bench has gone to the extent of refunding the Court Fee Stamp to the appellant because of the view taken by the trial Court decreeing the suit, which was held to be legally erroneous. Therefore, it cannot be said that because of such judgment, the provisions of Sub Rule (7) of Rule 3 of Order XXXVII is to be ignored, if defendant fails to file appearance withing time, as submitted by the respondent.
(3) Virubhai H. Patel vs. Shaikh Mohammed Sayed reported in 1975 (16) GLR 735, wherein learned Single Judge of this High Court has as back as in the year 1975 observed and held that:
"9. Thus, no general principle can be laid down that in all cases negligence of a counsel or pleader is negligence or a party and, therefore, would not be a sufficient cause. If we do so, we are only laying down an artificial rule which instead of advancing cause of justice in a given case may tend to curb the free exercise of judicial mind on a question of judicial discretion to be used in the matter soundly and in the interest of justice. The correct approach would be to ask: Do the facts Page 13 of 17 HC-NIC Page 13 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT and circumstances, brought out show negligence or inaction or want to bona fides imputable to the party? Were the steps necessary to be taken by the party taken? If so, when and with what result? Of course, the burden will be on the party claiming condonation of delay to put forward before the Court in clear and explicit terms the facts and circumstances on which he relies; and what steps, if any, which were necessary to be taken, were taken by him, when they were taken and their result. If all these facts and circumstances are brought before the Court it becomes easy to decide whether in a given case sufficient cause has been made out or not.
Applying the aforesaid test to the facts and circumstances discussed earlier, it is clear that sufficient cause has been made out in the present case."
Therefore, the fact remains that even after observing as above on given facts and circumstances, the High Court has held that sufficient cause has been made out for condoning the delay in filing the appeal. Therefore, though respondent is relying upon para 9, it cannot be said that because of such observations it is to be strictly construed in favour of the opponent and thereby all the applications for condonation of delay should be rejected. Therefore, this judgment would not help the respondent irrespective of observations in para 9 as above.
(4) Maheshkumar Tribhovandas Patel vs. Rameshkumar Ratilal Patel in First Appeal No. 567 of 2000 with Civil Application No. 4651 of 2000 dated 03.10.2000 by the division bench of this High Court, wherein division bench has confirmed the decree which was passed after almost two months from the service of summons for judgment but if we read the entire judgment, it transpires that irrespective of the provisions of Order XXXVII, the real reason for dismissing the appeal is set out in para 5 which does not require to be reproduced but such judgment cannot be considered as a dectum since even on factual aspect also the High Page 14 of 17 HC-NIC Page 14 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT Court has notice that the High Court had given time for two months and, therefore, when defendant has not taken any step, the appeal was dismissed. Therefore, this judgment would not help the respondent.
(5) Kailash vs. Nanku & Ors. reported in AIR 2005 SC 2441, wherein in fact Honourable the Supreme Court has to deal with the provisions of the Representation of the People Act and Order VIII Rule 1 of Code of Civil Procedure. Thereby taking shelter of Order VIII Rule 1, when trial Court has refused to accept the written statement of the defendant, it is again specifically stated that however no strait jacket formula laiddown except that observations of time schedule contempleted in provision of law shall be rule and departure there from and exception which can be made for satisfactory reasons only. If we peruse the entire judgment it is altogether a different issue before the Honourable Supreme Court wherein though notice was issued for filing appearance on 06.04.2004 and though matter was adjourned for filing written statement on 13.05.2004 and 03.07.2004, when no reply was filed even after 6 weeks, the High Court has taken a stand that non - action in all such period and delay is not explained. However, even after negative observations it was directed that written statement shall be taken on record subject to payment of Rs.50,000/- by way of cost payable by the appellant to the respondent. Therefore, even by such judgment late filing of written statement is condoned by confirming that at the most cost may be imposed because of such delay but it no where suggest that written statement cannot be accepted at all if there is a delay.
15. The respondent has also relied upon the unreported judgment dated 06.05.2015 in Special Civil Application No. Page 15 of 17 HC-NIC Page 15 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT 1574 of 2015 by the co-ordinate bench of this Court (Coram: S. R. Brahmbhatt, J.), wherein though provisions of Order XXXVII Rule 2 and 3 of the Code are discussed in detail. What is relevant to consider is the fact as discussed in para 29 of the impugned judgment which confirms that right of the defendant in terms of Order XXXVII Sub Rule (7) of Rule 3 of the Code was not denied but application under challenge for leave to defend was not allowed since it reveals no sufficient ground and that there was non - compliance of Order XXXVII Rule and 2 and 3 of the Code and an application under Order XXXVII Rule 3(7) of the Code was not preferred at any point of time. Therefore, practically when co- ordinate bench has decided the matter looking to the other development of the proceedings, it is a decision related to the facts and circumstances of that case only, and only because in given case, even if defendant is coming forward for condoning the delay and that too for 9 days only, appearance cannot be refused.
16. Therefore, this petition is allowed. Thereby impugned order dated 10.08.2015 passed by the learned Additional Senior Civil Judge, Rajkot below application at exhibit 33 is condoned. It would be open for the trial Court to pass appropriate order in accordance with law and evidence on record, so far as an application for leave to defend is concerned.
17. With these observations petition is allowed. Rule is made absolute accordingly. There shall be no order as to costs. Direct Service is permitted.
(S.G.SHAH, J.) drashti Page 16 of 17 HC-NIC Page 16 of 17 Created On Wed Sep 30 01:42:28 IST 2015 C/SCA/13894/2015 CAV JUDGMENT Page 17 of 17 HC-NIC Page 17 of 17 Created On Wed Sep 30 01:42:28 IST 2015