S R KULKARNI Vs. BIRLA VXL LIMITED

JUDGEMENT

(1.) The appellant in this appeal is defendant in the suit filed against him for recovery of over Rs. 5 lakhs under the summary procedure provided for in Order 37 Code of Civil Procedure. The application filed by the appellant in the suit seeking condonation of delay of re-filing the application for leave to defend has been dismissed and consequently the application for leave to defend the suit has also been dismissed without going into the merits and on the basis of allegations made in the plaint, the suit has been decreed. These are the circumstances under which the defendant has filed the present appeal assailing the decision of learned Single Judge declining to condone the delay in refiling application seeking leave to defend.

(2.) There was also a delay of 7 days in filing the application, seeking leave to defend. The appellant had filed IA 3268/96 seeking condonation of said 7 days delay. This application was not opposed by counsel for the plaintiff who is respondent in this appeal. Therefore. 1A 3-268/96 was allowed on 4th November, 1997 and initial dealy of 7 days in filing leave application was condoned. Therefore, we proceed with the assumption that filing of application for leave to defend on 19th August, 1995 was within limitation on account of delay having been condoned.

(3.) The Registry, on application for leave to defend, raised an objection on 21st August, 1995 that parties names do not tally It seems that parties named typed on application for leave to defend did not tally on account of wrong typing on the suit number on the index and on the application Instead of typing out correct number of the suit as 1123/94, it was typed as 1124/94. It is thus obvious that parties names would not tally since the Registry must be tallying the same with particulars of Suit No 1124/94. The application for leave to defend with the objection of the Registry was, however, received back by the appellant only on 4th March, 1996 and after removal of objection by correcting the suit number the application for leave to defend was refiled on 4th March, 1996, itself. We may note that when the matter had come up before the Joint Registrar (A) on 9th January, 1996 it was noticed by the Joint Registrar in his order that application for leave to defend was not on record though reply thereto had been filed by the plaintiff which was on record. This order further states that the counsel for the defendant may get in touch with Registry and get the application for leave to defend placed on record positively before the next date. The case was directed to be listed before the court on 27th February, 1996. Further the order dated 27th February, 1996 passed by learned Single Judge shows that despite the aforesaid order of the Joint Registrar, the application for leave to defendant had not been placed on record. Again counsel for the appellant was directed to check-up and remove objection, if any, and have the same placed on record On 27th February, 1996 the case was directed to be listed before the Joint Registrar for completion of pleadings on 20th March, 1996 and before the court on 12th April, 1996. On 20th March, 1996 the Joint Registrar noticed that the application for leave to defend was still lying under objection and it was not refiled after removal of objection despite the order dated 27th February, 1996 though reply and rejoinder to the said application were already on record. Counsel for the appellant was again directed to ensure the removal of the objection on the application for leave to defend and get the same placed on record before the next date i.e. 12th April, 1996 which was fixed for disposal of the application for leave to defend. The reason for the application for leave to defend not being on record seems to be that the Registry raised yet another objection, namely, the non-signing of Page No.8 of the said application. As already noticed above after the removal of objection regarding names of parties not tallying, the application for leave to defend was relied on 4th March, 1996. The second objection was raised by the Registry on 16th March, 1996. The endorsement on the application shows that this objection was removed on 21st March, 1996 though application for leave to defend was refiled in the Registry after removal of objection on 27th March, 1996. The application of leave to defend was, thus, before the court on 12th April, 1996. On that date the case was adjourned giving an opportunity to the appellant herein to move an appropriate application for explaining the delay in refiling of the application for leave to defend. This order led to filing of IA 4380/96 on which the order impugned in this appeal was made declining to condone about 200 days delay in refiling the application seeking leave to defend.