1965 (3) TMI 109 - HC - Indian Laws

Summary

Issues Involved:
1. Service of summons
2. Leave to appear and defend
3. Limitation period for applying for leave
4. Merits of the prayer for leave to defend

Detailed Analysis:

1. Service of Summons:
The judgment addresses the issue of whether the summons were duly served on the defendants. The process server claimed to have served the summons by affixing them to the outer door of the defendant's house after the defendant refused to accept them. However, the process server's return did not include the names or signatures of the witnesses, which led the court to question the credibility of the service. The court stated, "a prudent man is entitled to hold that they would have been equally good to disclose their names and to lend their signatures in the returns in token of having witnessed the service." Consequently, the court found the service of summons unreliable and declared that "the summons has not been duly served in any one of the three suits."

2. Leave to Appear and Defend:
The defendants applied for leave to appear and defend the suits after the ten-day period prescribed by Order 37 of the Procedure Code. The plaintiffs argued that the defendants had no locus standi to move the court for leave since the ten-day period had expired. However, the court found that since the summons were not duly served, the defendants' right to apply for leave remained intact. The court stated, "I shall grant them leave to appear, as prayed for, and shall ask them to exercise their right, right now, and to convince me that they are also entitled to the leave to defend the suits."

3. Limitation Period for Applying for Leave:
The court examined the provisions of Article 118 of the Limitation Act, which governs the period for applying for leave to appear and defend a suit under summary procedure. The court noted that the right to apply for leave is provided for in the Code of Civil Procedure and not by the Limitation Act, which only bars the remedy if the application is not made within ten days from the service of summons. Since there was no service of summons, the limitation period did not begin to run. The court stated, "The Limitation Act does not show its head here, for the simple reason that there has been no service of summons."

4. Merits of the Prayer for Leave to Defend:
On the merits of the defendants' prayer for leave to defend, the court found that there was a triable issue. The court noted that there appeared to have been monetary transactions between the parties and that the hundis were executed as collateral securities for sums due on adjustment of accounts. The court stated, "should the facts alleged by the defendants be proved at the trial, will they 'afford a good, or even a plausible, answer' to the plaintiffs' claim? I am satisfied, they will." Consequently, the court granted the defendants unconditional leave to appear and defend the suits.

Conclusion:
The court overruled the preliminary objection raised by the plaintiffs and granted the defendants leave to appear and defend the suits unconditionally. The court directed the defendants to file written statements and affidavits of documents by March 26, 1965, and scheduled the suits for a peremptory hearing on April 5, 1965. The costs were to be costs in the cause, with liberty to mention and certified for counsel.