BASHISTA BROS Vs. MUNSHI LAL OM PRAKASH

JUDGEMENT

(1.) This revision petition has been filed by the defendants against an order of the trial Court dated 21st March, 1973 by which it had disallowed their, application for amendment of the application for leave to appear and defend the suit.

(2.) The material facts giving rise to the revision are that the plaintiffs (respondents herein) on 25th August, 1972 instituted a suit for the recovery of Rs. 13,662.43 on the basis of cheques under the provisions of Order 37 of the Code of Civil Procedure. Summonses of the suit were issued and served on the defendent-petitioners on 25th October, 1972 The defendants filed an application under Order 37. Rule 3 of the Code which, was contested by the respondents who in their reply filed on 25th November, 1972 raised an objection that the petitioners had in their application made no prayer for leave to defend the suit, but had claimed; that the suit was barred by time and not maintainable and be dismissed. On the 19th December, 1972, the defendent-petitioners filed an application under Order 6, Rule 17 and section 153 Code of Civil Procedure for leave to amend paragraph 8 of the application. This application was resisted and the Court below by the impugned order has held that the application for amendment had been moved after the expiry of 10 days which was the period prescribed for filing the application for leave to appeal and defend the suit arid so it dismissed it oh this ground alone. [After citing para 8 the judgement proceeds]

(3.) The defendant-petitioners in the aforesaid application had titled it as an application on behalf of the defendents under Order- 37, Rule 3 read with section 151, Civil Procedure Code . for leave to defend the suit unconditionally. In the body of the application, they had contended that the suit of the plaintiff was barred by time .and, was not maintainable under Order 37 of the Code. They had denied the consideration of the cheques in indispute and had stated that the cheques were not meant for presentation they also denied the accrual of the cause of action and asserted that notransaction had taken place between the parties. In paragraph 1 of the additional pleas, the defendants had also stated that the summons of the case had been received by them on 25th October, 1972 and the reply was being filed within the prescribed period of 10 days and this was without prejudice to the fact that the suit under Order 37 of the: Code was not maintainable.