METRO CERAMICS PRIVATE LIMITED Vs. TALPOLE CHARTERING LIMITED

JUDGEMENT

(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 R.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.