S. SRINIVASAN AND ANR. Vs. P. BHAKTHAVATSULU NAIDU

JUDGEMENT

(1.) THIS is a petition to revise the order of the Third Additional City Civil Judge, Madras, refusing leave to the petitioner to defend a suit by excusing the delay in filing the application for leave to defend.

(2.) THE respondent plaintiff filed O. S. No. 332 of 1951 in the City Civil Court on a promissory note as a summary suit under Order 37, Rule 1(b), Civil P. C. for recovering a sum of Rs. 2013 -14 -0. The petitioners defendants were served with the summons as provided in form No. 4 of Appendix B to the Civil P. C. which was marked" before the learned Judge as Ex. A. 1. In that summons in addition to the form prescribed there were the further words "Hearing 22 -3 -1951 at 11 a.m." added to it. The summons were Served on 5 -3 -1951 and therefore ordinarily under Article 159, Limitation Act the application for leave to defend ought to be filed within ten days of the service of summons. But being misled by the additional words "hearing on 22 -3 -1951 at 11 a.m." the petitioners thought that they had time for applying for leave to defend until 22 -3 -1951 and therefore approached their counsel only on 21 -3 -1951 and instructed him to file the application for getting leave to defend. The lower Court has dismissed the petition on the ground that the period of ten days provided for under Article 159, Limitation. Act having expired there was no jurisdiction in the Court to extend the time for granting leave to defend. Mack J. had to consider a similar case in - - 'Murahari Rao v. Bapayya'., AIR 1949 Mad 742 (A), where the facts were practically similar. There also summonses were issued under Order 37, Rule 1, Civil P. C. to the defendant requiring -his appearance within ten days of service. A day after the expiry of the period fixed, the defendant appeared and moved under Order 37, Rule 3, Civil P. C. for leave to defend. The District Munsif granted him leave to defend unconditionally and on that order the plaintiff preferred a civil revision petition. While dismissing the same Mack J. observed as follows :

(3.) LEARNED counsel for the respondent relies upon certain observations contained in a decision of Rajamannar C. J. and Panchapakesa Ayyar J. in - - 'Kamalamma v. : AIR1951Mad895 (B), which are as follows: