(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9463 OF 2004 WRIT PETITION NO. 9463 OF 2004 WRIT PETITION NO. 9463 OF 2004 Bernoullis Instrumentation Pvt. Ltd. ...Petitioner Versus M/s. D.P.M. Instruments Pvt.Ltd. ...Respondent ..... Mr. Ajit Karwande, counsel for Petitioner Mr. Indrajeet Kulkarni, counsel for Respondent. ..... CORAM: CORAM: CORAM: B. H. MARLAPALLE, J. B. H. MARLAPALLE, J. B. H. MARLAPALLE, J. DATED: 7TH FEBRUARY, 2005 DATED: 7TH FEBRUARY, 2005 DATED: 7TH FEBRUARY, 2005 P.C.:- P.C.:- P.C.:- 1. Heard Mr. Karwande, the learned counsel for the petitioner and Mr. Kulkarni, the learned counsel for the respondent. 2. Rule. The respondent waives service. Rule taken up for final hearing forthwith. 3. In Summary Suit No.18/2003 the defendant has filed its appearance at Exh.11 and therein added one line for leave to defend. This prayer was rejected by the trial Court vide order dated 22.1.2004 on the ground that the prayer made was premature. It was also noted that the Summons for Judgment were not (-2-) served. 4. Thereafter, a fresh application was moved at Exh.15 by the defendant under Order XXXVII Rule 3(5) of C.P.C. and by the impugned order dated 26.7.2004, the said application has also been rejected. The applicant had prayed for setting aside the earlier order dated 22.1.2004 passed below Exh.11 and prayed for leave to defend unconditionally. 5. The learned C.J.J.D. Ulhasnagar mainly held that the application was signed by one Ms. Alka Punjawani and there was nothing to support that she was an authorised person to sign the application. In addition, the application was not signed in presence of any advocate and, therefore, the application was incompetent. The other reasonings given in support of the impugned order need not be considered. The application for leave to defend was required to be filed only after the Summons for Judgment was served and it appears that the defendant did not take proper steps to ensure that the application was filed by an authorised person and supported by an affidavit. The impugned order, cannot be treated to have taken away the defendant’s right to file an application under Order XXXVII Rule 3(5) of C.P.C., if the same is signed by an authorised person and not supported by an affidavit. (-3-) 6. Hence, the petition is partly allowed and it is clarified that the order below Exh.11 did not take away the rights of the defendant to file an application under Order XXXVII Rule 3(5) of C.P.C. If such an application is moved within a period of two weeks from today and signed by an authorised person and duly supported by an affidavit, the same shall be heard and decided on its own merit within a period of four weeks thereafter. 7. Rule made absolute in terms of the above order with no order as to costs. 8. Writ to go forthwith to the trial Court.