1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR FIRST APPEAL NO.486 OF 2008. Smt.Sunita w/o Anil Abre and anr. .vs.. Smt.Lalita w/o Sunil Kochar and anr. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Coram: C.L.PANGARKAR, J. Dated : 17th November, 2008. 1. Heard Mr.B.G.Kulkarni, Advocate for the appellants and Shri P.K.Mishra, Advocate for the respondents. 2. This appeal has been preferred by the defendants whose application for leave to defend has been rejected by the trial court. 3. The suit came to be instituted under Order 37 of the Code of Civil Procedure as a 2 summary suit for recovery of money of Rs.2,61,000/-. The suit was based on hire purchase agreement. The suit came to be filed on 17/10/2006. The summons for judgment was served to the present appellants/defendants on 10/8/2007. It is the contention of the present appellants that as contemplated under Order 37 Rule 3 they filed an application for leave to defend within ten days from the date of service of summons for judgment. 4. The learned judge of the trial court rejected the application filed by the present appellants/defendants holding that the case was already fixed for delivery of the judgment and therefore there was no question of granting leave to the defendants. It is this order that has been challenged. 5. After this order was passed, the learned judge of the trial court proceeded to deliver the judgment in the matter. He delivered the judgment holding that there was no defence available to the 3 defendants and therefore, decreed the suit. Feeling aggrieved by that judgment and decree, this appeal has been preferred. 6. The learned counsel for the appellants contends that the judgment needs to be set aside because of the fact that the appellants/defendants were not at all given any opportunity to defend the case at all. He submits that the appellants were not given leave to defend at all even though an application was filed within period of ten days. From the say filed by the respondents/plaintiffs to the application for leave to defend, it is clear that the summons for judgment was served on the appellants/defendants on 10/8/2006. Obviously, the appellants/defendants were entitled to move an application for leave to defend under Order 37 Rule 3 sub rule 5. The learned judge of the trial court dismissed the application for leave to defend on 8/1/2008 holding that the leave could not be granted to the appellants/defendants because of the fact that the case was already fixed for judgment. The leaned judge of the trial court fell into an error 4 in rejecting an application for leave to defend on the ground that the case was fixed for judgment. The defendants/appellants as of right were entitled to move an application within ten days from the date of service of summons for judgment and did move such application. When such application was moved within 10 days, the trial court was bound to consider that application on merits. In view of the fact that the trial court promptly rejected the application and thereafter delivered the judgment on the ground that there was no defence made out by the defendant and decreed the suit, the said judgment and decree also therefore needs to be set aside. Hence, the appeal will have to be allowed on this technical ground alone. The appeal is allowed. The Judgment and decree passed by the trial court is set aside. The matter stands remanded back to the trial court. The trial court shall now consider the application Exh.23 on merits and decide as to whether the appellants/defendants deserve to be granted leave to defend or not and thereafter proceed to deal 5 with the suit. The costs of this appeal shall be incurred. As far as possible the suit may be decided within four months from the date of receipt of writ of this court. Judge. pzc