PRAKASH CHIMANLAL SHETHversusPRATIK CHANDRAKANT SHAH

2026:BHC-AS:11139
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                         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.

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                               ________________
                                        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.




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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
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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
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             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
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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

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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

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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
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‘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
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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 Ltd 1. 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.

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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.
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                          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.]




Signed by: Megha S. Parab                                      Page No.12 of 12
Designation: PA To Honourable Judge                             4 March 2026
Date: 06/03/2026 20:47:24