Vitrocin Forexim Bucharest ... vs Byford And Ors.
1993 Latest Caselaw 472 Del

JUDGMENT

Sat Pal, J.

(1) In the present case the plaintiff has filed a suit for recovery of Us Dollars 86798.42 equivalent to Rs. 11,53,809.80 under Order 37 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). After the receipt of the summons for judgment defendant No.2 filed an application bearing I.A No.6916/91 under Order 37 Rule 3 of the Code seeking dismissal of the suit of the plaintiff with costs.

(2) The present application has been filed on behalf of the said defendant under section 151 read with Order 37 rule 3 of the. Code seeking leave of the Court to file an additional affidavit for raising additional pleas. The submissions made in the application have been controverter by the plaintiff in its reply to the application.

(3) Mr. Khanna, learned Sr. Counsel appearing on behalf of the defendants submitted that by this application the applicant has sought permission to raise some additional grounds and no new cause of action is sought to be introduced by the amendment. He. 'therefore, contended that the applicant should be permitted to raise additional pleas mentioned in the application. Learned counsel also drew my attention to Order 37 Rule 3(7) of Code and submitted that for sufficient cause shown by the defendam, the Court can excuse the delay of the defendant in entering an appearance or in applying for leave to detenu the suit but in the present case the application for leave to defend has been filed within limitation and by this amendment only certain additional grounds have been raised. 322

(4) Mr. Banati, learned counsel appearing on behalf of the plaintiff, however, submitted that in a suit filed under Order 37 of the Code, limitation has to be strictly observed and the defendant is required to enter appearance within limitation and application for leave to defend is also required to be filed within limitation. He, therefore, contended that the defendant cannot be allowed to amend his pleadings after the period of limitation is over. He further contended that since the application seeking amendment has been admittedly filed after the period of limitation was over, this application is liable to be dismissed. In support of his contention learned counsel has placed reliance on a judgment of Rajasthan High Court in Mohan Lal vs Om Prakash, .

(5) I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the records. From the application seeking amendment and the additional affidavit annexed to it, it is clear that no new cause of action is sought to be introduced and the applicant has only sought permission to raise certain additional pleas in support of its application for leave to defend the suit. In view of this I am of the opinion that the application should be allowed, however, subject to payment of costs. The view I have taken is supported by a judgment of this Court in M/s. Bashista Bros. vs Munshi Lal Om Prakash, 1973 RLR550. The ratio of the judgment in the case of Mohan Lal (supra) relied on by the learned counsel for the olaintiff, is not relevant to the facts of the present case as in that case the question seeking amendment of the application for leave to defend was not involved.

(6) In view of above discussion, the application is allowed subject to payment of costs of Rs.l,000.00 .