Delay in applying for leave to defend in Summary Suit – Order...

Delay in applying for leave to defend in Summary Suit – Order 37 of CPC

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Question: I had filed a summary suit. It is required that the defendant should have applied for leave to defend in the summary suit within 10 days, however, in my case the defendant applied for it after about one month. But, the court has still allowed the defendant to defend the summary suit. Is it not against the law which lays down that the leave to defend has to be applied by the defendant within 10 days of the summons?

Answer: A summary suit is filed under the provisions of Order 37 of the Civil Procedure Code (CPC). Rule 3(5) of this Order lays down the requirement of the defendant filing an application for leave to defend within 10 days of service of summons for judgment, and this sub-Rule is as under:

“(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.”

However, please note that sub-Rule (7) of the same Rule 3 of Order 37 specifically empowers the Court to condone the delay in applying for leave to defend the summary suit if a proper explanation is given for such delay:

“(7) 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.”

In view of this, there is no legal defect in the Court condoning the delay beyond limitation of 10 days in the defendant applying for leave to defend your summary suit. However, you can contest such delay condonation on facts, i.e., whether sufficient cause was shown by the defendant for such delay.

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