Quazie Mahmudar Rohman v. Sarat Chandra Dutt

Stanley, J.:— This matter comes before the Court on a petition filed by the Defendant for leave to defend the action.

The facts, upon which the point for my decision depends, are not disputed.

The suit was instituted on the 30th of August 1900 under Chap. XXXIX of the Code of Civil Procedure for the sum of Rs. 15,029 alleged to be due by the Defendant to the Plaintiff on the footing of a promissory note, dated the 24th of August 1900.

The summons prescribed by sec. 532 of the Code was served on the Defendant on the 21st September 1900 and as the ten days, during which the Defendant was entitled to apply for leave to appear and defend, expired during the long vacation, the Defendant had, up to the 19th of November, the first day on which the Court sat, to make his application.

The application was not made until the following day the 20th of November, when I directed that notice of the application should be given to the Plaintiff.

Mr. Mittra on behalf of the Defendant contends that the Court has power to extend the time named in the summons for applying for leave to appear and defend and relied upon the provision of sec. 36 of the Charter and referred me to several cases.

In the case of Chandra Kant Roy v. N.P Pogose, the head-note appears to me to be inaccurate. It is as follows:—“Where in a suit under Act V of 1866, the Defendant is at such a distance as would make it impossible for him to put in an appearance within the seven days allowed by the Act, the Court will stay execution for a time long enough to allow him to appear.”

The application there was under the previous Act (V of 1866) which contains somewhat similar provisions to those in the present Code.

From the head-note it would appear as if the Court had extended the time for a time long enough to enable the Defendant to appear. But what Phear, J., says at p. 84 is, “that, in all cases in which the Defendant resided so far off that the whole or a considerable portion of the time within which his might apply for leave to defend would be consumed in the mere journey, execution should be stayed, so as to allow time to make an application to set aside the judgment according to the provisions of sec. 4,” so that it is not—as would appear from the head-note—that time was granted to allow the Defendant to appear but execution was stayed for a time long enough to enable the Defendant to apply under sec. 4 to set aside the judgment.

Mr. Mittra also relies upon the decision of Pontifex, J., in the case of Groom v. Wilson. In that case, however, the learned Judge in granting leave to the Plaintiff to file the plaint directed that, as the Defendant lived at Peshawar, the time within which the Defendant might obtain liberty to appear and defend should be a period of 28 days instead of 10 days the time specified in the form contained in the 4th schedule to the Code.

He held in fact that the Court in granting leave to issue a plaint under Chap. XXXIX might fix a reasonable time, having regard to the residence of the Defendant, within which the Defendant might apply for leave to defend and that the 10 days prescribed by the form was not an unalterable limit.

Accordingly in that case 23 days was fixed by the summons itself as the time within which the Defendant might apply for leave to appear and defend.

That was a different case from the present case in which the time fixed by the summons is 10 days.

Of the unreported cases to which I have been referred the first is the case of Norendra Nath Bose v. Hari Lall Mallick(3) which was heard on the 29th August 1898.

In that case it appeared that the 10th day allowed by the summons expired on a Sunday and the application was made on the Monday following and the question there considered was whether the date of service should be excluded in computing the 10 days time. The matter came before Mr. Justice P. O'Kinealy and he allowed the Defendant liberty to appear and defend but on the express condition that the Plaintiff should be at liberty to raise this question under the Statute of Limitation. The learned Judge said:—“On the question whether the application was made in time I have said that I will allow the Defendant leave to appear and defend but as the application is made ex parte I will allow the Plaintiff, if he so wishes, to be heard on the question of limitation.” So there was no adjudication on the question which is raised before me.

Counsel on behalf of the Plaintiff contends that once the period fixed by the summons has expired the Court has no power to extend the time and he relies on sec. 4 of the Indian Limitation Act which provides that: “Subject to the provisions contained in secs. 5 to 25 (inclusive), every suit instituted, appeal presented, and application made, after the period of limitation prescribed therefor by the second schedule hereto annexed, shall be dismissed, although limitation has not been set up as a defence.”

The present case does not fall within any of the provisions of secs. 5 to 25, and under sec. 159 of the Limitation Act, the time from which leave to appear and defend a suit under Chap. XXXIX of the Code of Civil Procedure runs is from the service of the summons.

This was so held by Sale, J., in the case of Madhub Lall v. Woopendra Narain. In a subsequent case before Sale, J., which is unreported and which was disposed of on the 12th March 1895, F. Eisenlohr v. Goona Moni Debi, Mr. Avetoom applied for leave to file a warrant on behalf of the Defendant. On the part of the Plaintiff it was objected that the suit was under Chap. XXXIX and leave to appear and defend had not been obtained. Plaintiff's counsel submitted that Mr. Avetoom had no locus standi not having obtained leave to appear and defend and objected to his being heard.

The learned Judge stated that the proper course for Mr. Avetoom to take was to apply under sec. 534, Civ. P. Code, to set aside the decree. The Defendant not having within the time allowed by law applied for leave to appear and defend, an application at that stage for leave to appear and defend could not be entertained.

I am of opinion that sec. 4 of the Limitation Act is mandatory and that the Court has no power, after the time fixed by the summons for obtaining leave to appear and defend has expired, to extend the time. I refrain from expressing an opinion as to the power of the Court to grant an extension of time if an application for such extension be made before the time appointed by the summons had expired.

My decision does not conflict with the decision of Pontifex, J., in the case before him in which on the presentation and admission of the plaint the time was extended by the Court to 28 days. This seems to me to be a reasonable course to adopt in a case where the Defendant resides at a distance.

Under these circumstances, but with regret, I hold that I have no power to extend the time in his case. The Defendant has a remedy under sec. 534 if he can make out a case for the application of the section.

The application must be dismissed with costs.

Mr. R.C Mitter, Attorney for the Plaintiff.

Mr. A.S Barrow, Attorney for the Defendant.

S.R.D