// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Appeal No.1613/2008 With S.B. Civil Misc. Stay Appl. No.1034/2008 Preet Pal Singh s/o Sardar Gopal Singh Versus State Bank of India and Others Date of Order ::: 22.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Sudesh Bansal, Counsel for appellant #### By the Court:- Heard learned counsel for the appellant. The defendant-appellant has preferred this appeal challenging the impugned order dated 4th March, 2008 passed by the Additional District Judge No.1, Jaipur City, Jaipur, whereby his application under Order 9 Rule 13 CPC has been dismissed. He contended that due to inadvertence the application was filed under Order 9 Rule 13 CPC in place of Order 37 CPC. However, the trial court observed that even if this application is treated to have been filed under Order 37 CPC, the applicant has taken no plea of defence, therefore, the same cannot be accepted and, consequently, rejected the application on merits as well as on the ground of delay in its filing. // 2 // The learned counsel for the appellant has filed an application before this Court under Order 37 Rule 4 CPC read with Section 107 CPC for granting leave to defence to the appellant and also the permission to contest the suit before the trial court. The said application cannot be accepted here and the same is liable to be and is hereby dismissed. During the course of arguments, the learned counsel for the appellant contended that initially he filed an application under Order 9 Rule 13 CPC, therefore, he could not take a plea of defence in the said application; and now he may be permitted to withdraw this appeal with liberty to file fresh application under Order 37 Rule 4 CPC taking the plea to defend the suit. The order of the trial court shows that although the application has been dismissed on merits as well as on the ground of delay but this is also a fact that the court has rejected the application on the ground that plea of defence has not been mentioned in the application, therefore, the prayer of learned counsel for the appellant to allow him to withdraw the appeal appears to be reasonable and the same is allowed. Consequently, this appeal is dismissed // 3 // as withdrawn with liberty to the appellant to file fresh application under Order 37 Rule 4 CPC. In case the application is filed, the same will be decided in accordance with law without being influenced by this order in any manner whatsoever and that the merits as well as limitation both will be considered by the trial court afresh. Consequent upon dismissal of the appeal itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//