MOHANLAL MANORDAS GORADIA Vs. CKDARUWALA

JUDGEMENT

(1.) This is an application on behalf of the defendant in a summary suit to excuse the delay of, five days in taking out the summons for leave to defend the suit. The writ of summons was served upon the defendant on September 28. The period for obtaining the summons expired on October 9. The applicant in his affidavit states that owing to an attack of strong malarial fever, he was unable to take steps in time in the matter.

(2.) The application is made under Rule 193. of the High Court Rules. That rule provides as follows: 193. (1) The application for leave to appear and defend a suit filed under Order 37 of the Civil P. C. shall be made by summons. Such summons shall be taken out within. 10 days from the date of the service of the writ to summons, and it shall be returnable not less than 4 clear days after service. The summons shall be supported by an affidavit or affidavits. (2) If no such summons is taken out by the defendant within the aforesaid period or within such further period as may be allowed tinder Order 37, Rule 3, or if leave to appear and defend, is refused, the plaintiff shall be at liberty to put the suit down for hearing forthwith before the sitting Judge in Chambers.

(3.) The application for extension of time now made to me is under Rule 193, Sub- rule (2). The wording of that rule is not free from ambiguity. The clause under which the application is madeis "or within such further period as may be allowed under Order 37, Rule 3." The clause implies that there is a provision for extension of time under Order 37, Rule 3 of the Civil Proceedure Code. When we turn to Order 37 Rule 3, of the Civil Procedure Code, we find that it contains no such provision. What the draftsman intended by this rule evidently was that the discretion should be vested in the Chamber Judge, in a fit case, to extend the period of ten days allowed under Rule 193, Sub-rule (1), in cases to which Order 37, Rule 3, was applicable. Section 148 of the Civil P. C., however, empowers the Court to enlarge the time prescribed or allowed by it. I consider this to be a fit case for the exercise of that power.