Judgment:
R.K. Abichandani, J.
1. The petitioner seeks to challenge the order dated 6th October, 1990 passed by the learned Joint Civil Judge (J.D.), Gandhidham in Civil Suit No. 147 of 1988 below Exh. 25 granting leave to defend to the respondent. The main grievance of the petitioner is that, when the defendant had not filed application for leave to defend for a long time and the petitioner had already moved the Court by applications Exhs. 12 and 14 to pass a decree under Order XXXVII Rule 6 since no application for leave to defend was filed as required by Order XXXVII Rule 5 and the learned Civil Judge had directed that the matter be posted for pronouncement of judgment. The trial Court had, instead of pronouncing judgment, granted leave to defend on an application made by the respondent after the earlier order directing to place the matter for pronouncement of judgment was passed.
2. The petitioner has sued the respondent for recovery of Rs. 3,685/- with interest on the ground that the respondent failed to repay the amount of Rs. 3,000/- borrowed from the petitioner on 13th July, 1987 under a promissory note. In the said summary suit, it appears that the summons for judgment was served on the respondent on 7th February, 1989. On 19th January, 1989, the petitioner filed an affidavit Exh. 12 praying for judgment and decree. On 18-2-1989, the petitioner filed application Exh. 14 stating that the necessary affidavit Exh. 12 was filed by the petitioner and that since the respondent had not filed any application for leave to defend within 10 days from the date of services of summons a decree be passed in his favour under Order XXXVII Rule 3(6)(a) of the Civil Procedure Code. The learned Civil Judge (J.D.), Gandhidham heard the said application Exh. 14 along with affidavit Exh. 12 and observed that since the respondent had not applied for leave to defend and that the ground put forth by the respondent in reply to the application Exh. 14 could not be accepted the matter be posted for pronouncement of judgment. Admittedly, no judgment has thereafter been pronounced. After this order was passed on 7-12-1989, the respondent filed an application for obtaining leave to defend at Exh. 25 in which he said that the original promissory note was produced only on 7-12-1989 and therefore the application for leave to defend was within the prescribed time. The learned trial Judge came to the conclusion on the basis of material on record that the respondent had a good defence and a triable issue was raised and therefore by the impugned order dated 6-10-1990 he allowed the application granting leave to defend to the respondent.
3. It was contended on behalf of the respondent that by granting leave to defend to the respondent, the trial Court had impliedly condoned delay if any in filing of the application for leave to defend. On the other hand, it was contended by the Counsel for the petitioner that there could not be any such implied condonation and that once arguments were heard on the summons for judgment and the matter was to be posted for pronouncement of judgment as directed by the trial Court, the trial Court had not jurisdiction to grant application for leave to defend.
4. It would be seen from the provisions of Order XXXVII Rule 3 of the Civil Procedure Code that the application required to be made by the defendant under Rule 3(5) has to be made at any time within 10 days from the service of the summons for judgment. Therefore, the assumption by the respondent, made in his application Exh. 25 that because the original promissory note was produced on 7-12-1989 in the Court his leave to defend application which was filed on 16-12-1989 was within time, is misconceived. Admittedly, the summons for judgment was served on the respondent on 7-12-1989 and therefore an application for leave to defend filed on 6-10-1990 was not within the time stipulated under Rule 3(5) of Order XXXVII of the Civil Procedure Code. There can be no question of the trial Court having impliedly condoned the delay when the case of the respondent was that there was no delay in filing of the application for leave to defend. Thus, without considering the question of delay in the filing of application for leave to defend, the trial Court straightaway allowed the application of the respondent for leave to defend on the ground that a triable issue was raised.
5. It was contended on behalf of the petitioner that, in view of the earlier order dated 7-12-1989 directing that the matter be posted for pronouncement of judgment, there was no option left with the Court but to pass judgment in favour of the petitioner in view of the provisions of Rule 3(6)(a) of Order XXXVII of the Civil Procedure Code. It has been laid down under the said provision that at the hearing of the summons for judgment if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith. On the basis of this provision, it was contended that no option was left with the trial Court but to pass judgment when leave to defend application was not made. This submission ignores the provisions of Sub-rule (7) of Rule 3 of Order XXXVII which lays down the Court or Judge may for sufficient cause shown by the defendant excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. If no option was left with the Court but to deliver the judgment when application for leave to defend was not filed within the stipulated time then the provisions of Sub-rule (7) of Rule 3 of Order XXXVII would become redundant. It is obvious that, before any judgment is pronounced in favour of the plaintiff under the provisions of Order XXXVII Rule 3(6) of the Civil Procedure Code if the defendant comes forth and shows sufficient cause for excusing the delay in filing the application for leave to defend the suit, on being satisfied about such sufficient cause, it would not be open for the Court to pronounce any judgment without hearing the application for leave to defend. Even after a decree is passed, the Court may under special circumstances set aside the decree and if necessary stay or set aside an execution and may give leave to defend to the defendant to appear to the summons and to defend the suit as provided in Rule 4 of Order XXXVII of the Civil Procedure Code. Therefore, it can never be urged that if leave to defend application is not made within the time prescribed by the statute, a judgment must necessarily be passed in favour of the plaintiff even if sufficient cause is shown by the defendant in excusing the delay in entering an appearance or in applying for leave to defend the suit. However in the instant case, since the respondent-defendant never attempted to show any sufficient cause for excuse of delay in filing the application for leave to defend and on the contrary proceeded on the footing as if his application was within time, the trial Court was not justified in granting the application for leave to defend on the ground that a triable issue was raised.
6. In the application for leave to defend, which was filed by the respondent he had not disclosed any sufficient cause for excusing the delay and there was no occasion for the trial Court to consider whether there was any sufficient causes. Therefore, the trial Court could not have straightaway proceeded to decide whether there was a triable issue for the purpose of granting leave to defend when admittedly the application for leave to defend was filed on 16th December, 1989 though the summons for judgment was served on him on 7th February, 1989. Though the trial Court had reproduced the argument that in view of the earlier order dated 7-12-1989 on applications Exh. 14 read with affidavit Exh. 12 the matter was to be posted for pronouncement of judgment, it has not cared to consider that argument and straightaway proceeded to decide the question whether there was a triable issue. Admittedly the respondent had not given any application for condonation of delay nor had he attempted to show any sufficient cause in the application for leave to defend Exh. 25 which he had filed on 16-12-1989. The trial Court, therefore, could not have considered the question as to whether there was a triable issue without there being any order of excusing the delay in applying for leave to defend under Sub-rule (7) of Rule 3 of Order XXXVII of the Civil Procedure Code. The trial Court has, therefore, committed an error in exercise of its jurisdiction in passing the impugned order dated 6-10-1990 below Exh. 25 granting leave to defend to the respondent. The impugned order is, therefore, set aside. Rule is made absolute accordingly with no order as to costs.