G SATYANARAYANA Vs. M SHANKAR

JUDGEMENT

(1.) The revision petitioner is the defendant in the suit O.S.No. 3608 of 1998. The respondent herein is the plaintiff, who laid the said suit for recovery of an amount of Rs. 59,090.25 ps. The suit was filed invoking summary jurisdiction under Order 37 of the Civil Procedure Code (for short 'the Code'). The basis for the suit claim was that the plaintiff orally agreed to carry out the construction work at the defendant's house on labour contract basis. As per the terms of the contract, the defendant should supply the material for 'construction and the plaintiff should engage the labourers for such construction work. Accordingly, the plaintiff carried out the construction work and prepared a statement of account for the work done. As per the statement arrived at between the plaintiff and the defendant, the defendant agreed to pay a sum of Rs. 1,87,589.25 ps. and further agreed to pay 10% more of the said amount working out to Rs. 18,758.00. After deducting the amounts paid by the defendant, still he was due to the tune of Rs. 59,090.25 ps. for which ultimately the plaintiff laid the suit.

(2.) Pursuant to the summons served upon him, the defendant appeared before the Court through his Counsel. Later, it appears that he filed a petition under Order 37 Rule 3(1) of the Code seeking permission to defend the case in SR. Nos. 3661 and 3662 of 1998 on 03-09-1998. He was waiting for the requisite notice to be issued by the plaintiff under the mandatory provisions of Order 37 Rule 3 (3) of the Code. He did not know the proceedings of the Court till 05-10-1998. In the meanwhile, the suit was decreed ex parte. Therefore, he filed LA. No. 2047 of 1998 for condoning the delay of 35 days occurred in the process of filing the concomitant petition in I.A.No. 839 of 1998 seeking to set aside the ex parte decree under Order 37 Rule 7 of the Code. Since the petition filed by him seeking leave to defend in SR Nos. 3661 and 3662 of 1998 had been returned on some office objection and as it had not been re-presented in time, he filed LA. No. 838 of 1998 seeking enlargement of time under Section 148 of the Code and to condone the delay of 74 days in re-presenting the petition SR Nos. 3661 and 3662 of 1998.

(3.) The respondent plaintiff filed his counter in I.A.No. 2047 of 1998 resisting the application pleading, inter alia, that the affidavit filed in support of the petition was not given by the party himself and that he filed the application contrary to the provisions of Order 37 Rule 3 (1) of the Code and that there was no explanation for the delay.