Del HC | Discrepancy of not filing “leave to defend” under Or. 37 R. 3(5) in response to summary suit could be ignored in interest of justice

Delhi High court: Vibhu Bhkaru, J. dismissed a revision petition filed under Section 115 CPC impugning an order passed by the Additional District Judge in the subject summary suit whereby the respondents were granted unconditional Leave to Defend.

The respondents had defaulted in repaying the loan extended to them by the petitioner. Thereafter, the petitioner filed a suit for recovery of the loan under Order 37 CPC. The respondents, in response to the aforesaid summary suit, filed a reply to the application filed by the plaintiff under Order 37 Rule 3(4) CPC for “summons for judgment”, instead of an application under Order 37 Rule 5 for “leave to defend”. By the impugned order the trial judge held that the said discrepancy could be ignored, and the reply filed on behalf of the respondents could be treated as leave to defend in the interest of justice. He accordingly granted the respondents an unconditional leave to defend. Aggrieved thereby, the petitioner filed the present revision.

Preeti Singh, Advocate for the petitioner contended that trial court grossly erred in treating the reply filed by the respondents as an application for leave to defend under Order 37 Rule 3(5).

The High Court, however, was of the view that the contentions of the petitioner were not persuasive. It was observed: It is relevant to bear in mind the object of prescribing the procedure for seeking leave to defend under Order 37 Rule 3(5) CPC. The rationale for evolving such a procedure, requiring the defendant to file a leave to defend, is to enable the Court to evaluate whether there exist any triable issue warranting the suit to be set down for trial. In the present case, the reply filed by the respondents had clearly set out the grounds of defence.” It was reiterated that the rules of procedure are meant to aid the delivery of justice and a minor infraction of such rules of procedure ought not to visit the concerned party with consequences which substantially defeat the ends of justice.

Also, the petitioner did not contest the trial court’s conclusion that the respondents had a reasonable defence. In such view of the matter, the Court dismissed the revision petition.[Netrapal Singh v. Ravinder Kumar Kalyanai, 2019 SCC OnLine Del 9622, decided on 07-08-2019]




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