Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2446 OF 2022 Prakash Chimanlal Sheth ...Petitioner V/s. Pratik Chandrakant Shah, since deceased through his legal heirs- 1A) Kuntal Pratik Shah and Ors. ...Respondents WITH WRIT PETITION NO.2463 OF 2022 Mrs. Alpa Prakash Sheth ...Petitioner V/s. Mrs. Kuntal Pratik Shah ...Respondents WITH WRIT PETITION NO.2465 OF 2022 Ashish Jayantilal Sheth ...Petitioner V/s. Mrs. Kuntal Pratik Shah ...Respondents WITH WRIT PETITION NO.7047 OF 2022 Smt. Alkaben Jayantilal Sheth ...Petitioner V/s. Pratik Chandrakant Shah, since deceased through his legal heirs- 1A) Kuntal Pratik Shah and Ors. ...Respondents ________________ Mr. Balasaheb Deshmukh for the Petitioner in all the Petitions. Ms. Swapnali B. Thombare i/b. M/s. Das Associates for the Respondents. Page No. 1 of 12 4 March 2026 2026:BHC-AS:11139 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt ________________ CORAM: SANDEEP V. MARNE, J. DATED: 4 MARCH 2026. ORDER:- 1) These four Petitions challenge the orders passed by the learned Judge of the City Civil Court allowing Notices of Motion ?led by the Respondents/Defendants and permitting them to ?le reply to summons for judgment/applications for leave to defend by condoning the delay after imposition of costs. 2) The Petitioners are Plaintiffs in the Summary Suit ?led against Respondents/Defendants for recovery of various amounts. Upon service of Suit summons, Defendants appeared in the Suit. Plaintiffs took out summons for judgment and served the same on the Defendants. The Defendants failed to ?le their reply opposing summons for judgment within a period of 10 days of service of summons for judgment. Accordingly, the Court proceeded to pass orders directing that the summons for judgment would proceed without reply by the Defendants. After passing of order dated 2 November 2017, the Defendants ?led Motions seeking condonation of delay in ?ling reply to summons for judgment. By the impugned orders passed on 29 October 2021, the Trial Court has allowed the Motions ?led by the Defendant and has permitted them to ?le replies to the summons for judgment by condoning the delay subject to payment of costs. Page No. 2 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt 3) According to the Petitioners, the City Civil Court had passed orders directing that the ‘summons for judgment would proceed without reply’ and that once such order was passed by the Court, it is impermissible for the Court to recall its own order or sit in appeal over it and permit the Defendants in the summary suits to ?le reply to summons for judgment. 4) I have heard Mr. Deshmukh, the learned counsel appearing for the Petitioners and Ms. Thombare, the learned counsel appearing for the Respondent and considered the submissions canvassed by them. I have also gone through the reasons recorded by the Trial Court in the impugned orders. I have also perused the records of the case ?led alongwith the Petitions. 5) The main point urged on behalf of the Petitioners is that once an order is passed by the Court that ‘summons for judgment would proceed without reply’, it is no longer open to the Court to change its decision and permit ?ling of reply. It is contended that the Trial Court cannot sit in appeal over its own decision, which directs summons for judgment in absence of reply. It is contended that only higher forum can alter the decision of the Trial Court directing decision of the summons for judgment without reply. 6) Under Order XXXVII Rule 3 of the Code of Civil Procedure, 1908 (the Code) the Defendant, who is served with summons in a summary suit is required to appear before the Court within 10 days and to ?le address for service of notice on him. After the Defendant puts an appearance in summary suit, the Plaintiff needs to serve on the Defendant a summons for judgment. Once summons for judgment is Page No. 3 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt served on the Defendant, he needs to ?le reply opposing summons for judgment/application seeking leave to defend within a period of 10 days of service. Upon ?ling of reply/application for leave to defend by the Defendant, the Court needs to decide whether leave to defend can be granted to the Defendant. In the case where the Defendant fails to apply for leave to defend within 10 days, or if Defendant’s application for leave to defend is rejected, Plaintiff becomes entitled to pronouncement of judgment forthwith. However, under sub-Rule (7) of Rule 3 of Order XXXVII of the Code, the Court is invested with power to condone the delay, both in entering appearances as well as in applying for leave to defend the Suit. Order XXXVII Rule 3 of the Code provides thus:- 3. Procedure for the appearance of defendant— (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall ?le in Court an address for service of notices on him. (2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service. (3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be. (4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an af?davit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (5) The defendant may, at any time within ten days from the service of such summons for judgment, by af?davit or otherwise disclosing such Page No. 4 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt facts as may be deemed suf?cient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satis?ed that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. (6) At the hearing of such summons for judgment,— (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be ?xed by the Court or Judge and that, on failure to give such security within the time speci?ed by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith. (7) The Court or Judge may, for suf?cient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. 7) Thus, under the scheme of Order XXXVII Rule 3, there is no stage for the Court to pass an order for summons for judgment to proceed without reply. In the event, Defendant fails to seek leave to defend within 10 days of service of summons for judgment, the Court is entitled to pronounce the judgment in favour of the Plaintiff. However, if the Court does not immediately pronounce the judgment upon failure of the Defendant to ?le application for leave to defend, it is open for Defendant to apply to the Court to condone the delay in ?ling application for leave to defend under sub-rule (7) of Rule 3. Thus, during the time gap of date Page No. 5 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt of expiry of period of 10 days and pronouncement of the judgment, Defendant can apply to the Court for condonation of delay under sub- rule (7) of Rule 3 of Oder XXXVII of the Code for applying for leave to defend. 8) The issue for consideration is whether such application for condonation of delay can be ?led in a case where the Court directs that the ‘summons for judgment shall proceed without reply.’ In my view, mere passing of an order by the Court for proceeding with the order of summons for judgment without reply would not preclude the Defendant from ?ling application under sub-rule (7) Rule 3 of Order XXXVII of the Code. Even if Court passes an order directing that the summons for judgment shall proceed without reply, the same does not amount to refusal for leave to defend. It would also not ?t into the expression ‘if the Defendant has not applied for leave to defend’ used in sub-rule (6) of Rule 3 as the said expression is in relation to Plaintiff’s entitlement for pronouncement of judgment and therefore the ‘failure to apply for leave’ must occur right till the Court pronounces the judgment. This would necessarily mean that the Defendant would be entitled to apply under sub-rule (7) of Rule 3 to apply for condonation of delay and tender the application for leave to defend at any point of time till the judgment is pronounced. Once the judgment is pronounced and decree results, Court’s power to set aside the decree is under Rule 4 of Order XXXVII. 9) The direction for summons for judgment to proceed without reply is more of a procedural direction than a ‘decision’ taken after adjudication of an issue. As contradistinct from a procedural direction for summons for judgment to proceed without reply, when court Page No. 6 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt adjudicates the Defendant’s entitlement to seek leave to defend, it renders ‘decision’ capable of being challenged in the higher court. On the other hand, direction that summons for judgment shall proceed without reply would not partake the character of a ‘decision’ taken after adjudication and therefore the same cannot be susceptible to challenge before higher forum. 10) As a matter of fact, there is no question of ?ling any ‘reply’ to summons for judgment and what sub-rule (5) of Rule 3 contemplates is ‘applying for leave to defend’. Therefore, when Court gives a procedural direction that the summons for judgment shall proceed without reply, it essentially records the factum of failure on the part of the Defendant to apply for leave to defend within stipulated time. In my view therefore, the application for leave to defend can be tendered right till the Court pronounces the judgment by seeking condonation of delay under sub- rule (7) of Rule 3. 11) The scheme under Rule 3 of Order XXXVII of the Code is such that the Court entertaining summary Suit can only take two ‘decisions’ in a case where summons for judgment is served on the Defendant. If the Defendant applies for leave to defend within 10 days, the Court adjudicates upon Defendant’s entitlement to seek leave to defend and renders a ‘decision’. If on the other hand, the Defendant fails to apply for leave to defend, the Court can pronounce the judgment in favour of Plaintiff, which obviously tantamount to a ‘decision’. Except these two decisions, no other decision is contemplated under sub-rules (4) to (6) to Rule 3 of Order XXXVII. One more decision, which the Court can take is under sub-rule (7) for condonation of delay in appearance or in applying Page No. 7 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt for leave to defend. Thus, statutory scheme under Rule 3 of Order XXXVII does not contemplate or envisage making any ‘decision’ to the effect that ‘summons for judgment shall proceed without reply’. This would amount to a mere procedural direction not constituting a ‘decision’ capable of being challenged before a higher forum. Therefore, mere issuance of procedural direction by the Trial Court for summons for judgment to proceed without reply would not mean that the Court is precluded from exercising jurisdiction under sub rule (7) of Rule 3 of Order XXXVII of the Code. 12) There are various eventualities where the Courts do tend to issue similar procedural directions, which are not strictly contemplated in the Code. To illustrate, in relation to ?ling of a written statement, provisions of Order VIII Rule 1 of the Code prescribe a time limit for ?ling of written statement with power to the Court to enlarge such time. Quite often, Courts do tend to pass ‘no written statement’ order, if written statement is not ?led within prescribed time. However, merely because the court issues procedural direction for Suit to proceed without written statement, it does not mean that court’s power to recall such order and to enlarge the time for ?ling of written statement is circumscribed. Even under statutory scheme of Order VIII Rule 1 of the Code, there is no speci?c provision for taking any ‘decision’ for suit to proceed without written statement. However, Courts do tend to issue such directions to the effect that the suit shall proceed without written statement. However, upon cause being shown, Courts are empowered to recall such direction by condoning the delay in ?ling written statement. Thus, the direction by a Court entertaining summary suit that ‘summons for judgment to proceed without reply’, is akin to procedural directions of Page No. 8 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt ‘no written statement’. If ‘no written statement’ order can be recalled and written statement can be permitted to be ?led by condoning the delay, I do not see any reason why direction for summons for judgment to proceed without reply cannot be recalled and power under sub-rule (7) of Rule 3 of the Order XXXVII of the Code cannot be exercised by the Court. 13) I am not impressed by the submission of Mr. Deshmukh that the order directing the summons for judgment to proceed without reply can only be set aside by the appellate court. If provisions of sub-rule 4 of Order XXXVII are taken into consideration, the very court which pronounced judgment and made decree upon Defendant’s failure to apply for leave to defend is empowered to set aside the decree and grant leave to defend upon cause being shown. Thus even when a decree is made upon Defendant’s failure to apply for leave to defend, court’s power to reconsider its decision is not circumscribed and therefore it would be too farfetched to hold that once court records the factum of failure by the Defendant to apply for leave to defend by issuing a direction ‘summons for judgment to proceed without reply’, Court’s power to condone the delay in applying for leave to defend under sub-rule (7) of Rule 3 vanishes. 14) If the interpretation discussed above is not made, the same would create unreasonable classi?cation amongst various summary suits. There is no mandate under Rule 3 of Order XXXVII for the Court to issue direction for summons for judgment to proceed without reply immediately on expiry of 10 days from the date of service of summons for judgment. Therefore, in one summary suit, the Court may not pass Page No. 9 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt direction for summons for judgment to proceed without reply and thereby allow the Defendant to ?le application for condonation of delay in applying for leave to defend. However, in other suit, the court may pass direction that the summons for judgment shall proceed without reply. The interpretation put forth by the Petitioners would then result in an absurd situation where application for condonation of delay can be entertained and decided in a former case but the same cannot be entertained and decided in a latter case. Thus, condoning delay in applying for leave to defend would remain a subject matter of absolute discretion by the Trial Court. In cases where Trial Court does not pass procedural directions for summons for judgment to proceed without reply, the Defendant would be entitled to apply for condonation of delay in ?ling application for leave to defend. However, on the other hand where such procedural direction is issued, Defendant’s remedy under sub-rule (7) of Rule 3 of Order XXXVII of the Code would be barred. Legislature has not intended this arti?cial difference depending on absolute discretion of the Trial Court particularly because statutory scheme of Order XXXVII Rule 3 does not contemplate issuance of any direction for summons for judgment to proceed with or without reply. 15) Mr. Deshmukh has strenuously relied upon order Passed by this Court in Rentworks India Pvt. Ltd. V/s. India Infoline Ltd1. However, in paragraph 8 of the order, this Court has held as under:- 8. ... Thus, in order 37 itself there is no provision for the trial Court setting aside its own order refusing to grant leave to defend summary suit. (emphasis added) 1 Writ Petition No.9999 of 2013, decided on 28 October 2013. Page No. 10 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt 16) Thus, what is held by this Court is that there is no provision in Order XXXVII of the Code for Trial Court to set aside its own order refusing to grant leave to defend a summary suit. It appears that in Rentworks India Pvt. Ltd. this Court treated direction for hearing of summons for judgment without reply as refusal of leave to defend. Order in Rentworks India Pvt. Ltd. is thus passed on an assumption that there was refusal to grant leave to defend and this Court held that ‘such a decision was incapable of being altered by the Trial Court’. It is held that the Trial Court cannot sit in appeal over its own decision nor can review the same except in accordance with order XLVII Rule 1. In my view, the judgment in Rentworks India Pvt. Ltd. would have no application to the present case where there is no refusal to grant leave to defend by the Trial Court. All that the Trial Court had done is to merely record that the Defendant had failed to apply for leave to defend. In Rentworks India Pvt. Ltd. (supra) the direction for City Civil Court was ‘Hence matter is adjourned for hearing N/M & S/J without reply on behalf of the Deft’. This Court interpreted the said direction to mean a decision that leave to defend has been rejected by the City Civil Court. In the present case, I am unable to hold that direction that ‘Hence SJ to proceed without reply’ can be treated to mean that the City Civil Court has refused to grant leave to defend. It is well settled that the judgment is an authority for what it decides and not what can be logically deduced therefrom. A little difference in fact situation can make a world of difference to the precedential value of a judgment. 17) In my view therefore, City Civil Court has rightly proceeded to exercise jurisdiction under sub-rule (7) of Rule 3 of Order XXXVII of the Code by entertaining the Notices of Motion for condonation of delay. Page No. 11 of 12 4 March 2026 Megha 65_wp_2446, 2463, 2465 & 7047_22_fc.odt 18) So far as merits of the decisions is concerned, the City Civil Court has exercised discretion in condoning the delay. It is not that the delay spanned over months or years. The delay was of few days, which has been condoned by the City Civil Court by imposition of costs. It is not that the Defendants did not plead any justi?cation for condonation of delay. The exercise of discretion by the Trial Court is not so irrational that this Court must step in and exercise extraordinary jurisdiction under Article 227 of the Constitution of India. I am therefore not inclined to interfere in the impugned orders. 19) Writ Petitions are accordingly dismissed. There shall be no orders as to costs. [SANDEEP V. MARNE, J.] Page No. 12 of 12 4 March 2026 Signed by: Megha S. Parab Designation: PA To Honourable Judge Date: 06/03/2026 20:47:24