Dipak Sampatrao Gaikwad vs Shri. Sanjay Kundalik Gaikwad
2017 Latest Caselaw 6241 Bom

                                                                 (921) WP-3725-17


Sarnobat
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO. 3725 OF 2017


      Deepak Sampatrao Gaikwad.                                    .. Petitioner
            Vs.
      Shri Sanjay Kundalik Gaikwad.                                .. Respondent


      Mr. Umesh Mankapure, Advocate for the Petitioner.
      Mr. Ashutosh Kulkarni a/w Mr. Sarthak Diwan Advocate for the
      Respondents.


                                          CORAM : M. S. SANKLECHA, J.

DATE : 16th AUGUST, 2017.

P. C. :

1. Moved for urgent relief.

2. This petition under Article 227 of the Constitution of India seeks to

challenge the order dated 3rd January, 2017 passed by the Joint Civil

Judge, Sr. Division, Sangli. By the impugned order the petitioner's

application for filing a written statement in a summary suit proceeding

under Order 37 Rule 3(5) of the Code of civil Procedure was dismissed.

3. The respondent herein has filed the suit for Rs. 67,94,100/- under

Order 37 Rule 2 of Code of Civil Procedure and summons alongwith the

plaint was served upon the Petitioner on 15th November, 2016. The

petitioner did not file his appearance within 10 days, as provided under

Rule 3 (2) of Order 37 of Civil Procedure Code. It was only on 1 st

December, 2016 that the respondent appeared and filed his application

(921) WP-3725-17

under Order 37 Rule 3(5) of Civil Procedure Code seeking permission to

file written statement. The impugned order rejected the application on the

ground that the petitioner appeared after 10 days of the service of the

summons. Moreover, it also records that the application offers no

explanation for non-appearance within 10 days as required in Summary

Suit proceedings. The fact that the application made also does not make

out any triable issue arising in the present case.

3. Mr. Manakpure learned counsel for the petitioner states that,

there is only a delay of 6 or 7 days in filing his appearance. Therefore, a

lenient view should be taken.

4. I find that in the present facts, there is no application also

made under Order 37 Rule 7 of the Code of Civil Procedure seeking

condonation of delay and applying for leave to defend the suit. The view

taken in the impugned order dated 3 rd July, 2017 is a

possible view and no interference under Article 227 of the Constitution is

warranted.

5. Accordingly petition is dismissed. No order as to costs.

[ M. S. SANKLECHA, J. ]