Bombay High Court

SMT. ALKABEN JAYANTILAL SHETH THRU POAH MR. PRAKASH C. SHETHversusKUNTAL PRATIK SHAH

Decided: 4 March 2026
Disposal: Disposed Off
Bench: SANDEEP V MARNE

Holding

The trial court's discretion to condone the delay was not irrational and the order stands.

Summary

The petitioner challenged a High Court order that upheld a City Civil Court's decision to condone a 37‑day delay by the defendant in filing an appearance in a summary suit. Under Order XXXVII Rule 1 of the Code of Civil Procedure, a defendant must appear within ten days of service, but the trial court exercised its discretion under sub‑Rule (7) of Rule 3 of the same order to excuse the delay. The defendant claimed the summons was served on her minor daughter and cited her husband’s medical condition as justification. The High Court found the trial court’s exercise of discretion was not irrational and did not merit interference under Article 227 of the Constitution. Consequently, the writ petition was dismissed without costs.

Issues considered

Whether the trial court erred in condoning a 37‑day delay in filing appearance under Order XXXVII Rule 1 of the CPC.
Whether the discretion exercised by the trial court was irrational, warranting interference under Article 227.

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXXVII Rule 1, Order XXXVII Rule 3(7)

Subjects

summary suit
condonation of delay
civil procedure
discretion
Article 227
writ petition
High Court

Judgment

2026:BHC-AS:11140
              Megha                                             65_wp_9841_2019_fc.odt

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION
                                   WRIT PETITION NO.9841 OF 2019
              Smt. Alkaben Jayantilal Sheth                       ...Petitioner

                                 V/s.

              Kuntal Pratik Shah                                 ...Respondent
                                            ________________
              Mr. Balasaheb Deshmukh for the Petitioner .
              Ms. Swapnali B. Thombare i/b. M/s. Das Associates for the Respondent.
                                            ________________
                                                      CORAM: SANDEEP V. MARNE, J.
                                                       DATED: 4 MARCH 2026.


              P.C.:



              1)      Petitioner has challenged order dated 27 August 2018 passed by
              the learned Judge, City Civil Court allowing Chamber Summons No.519
              of 2016 and condoning delay of 37 days in giving appearance by the
              Defendant in the summary suit.



              2)      I have heard Mr. Deshmukh, the learned counsel appearing for the
              Petitioner and Mr. Thombare, the learned counsel appearing for the
              Respondent. I have considered the submissions canvassed by them. I
              have also gone through the reasons recorded by the Trial Court in the
              impugned order. I have also perused the records of the case >led
              alongwith the Petition.



                                               Page No.1 of 2
                                               4 March 2026
                          Megha                                                   65_wp_9841_2019_fc.odt

                          3)          Under Order XXXVII Rule 1 of the Code of Civil Procedure, 1908
                          (the Code), once summons is served on the Defendant in a summary suit,
                          he needs to put appearance within a period of 10 days and >le address
                          for service of notice on him. In the present case, there was delay of 37
                          days in >ling appearance by the Defendant after service of suit summons.
                          Under sub-Rule (7) of Rule 3 of Order XXXVII, the Trial Court is invested
                          with power to excuse delay in applying for delay in entering the
                          appearance by the Defendant. In the present case, the Trial Court has
                          exercised power vested under sub-Rule (7) of Rule 3 of Order XXXVII of
                          the Code and has proceeded to condone delay of 37 days in >ling
                          appearance by the Defendant.



                          4)          Thus, the Trial Court has exercised discretion in condoning delay
                          of 37 days in >ling appearance by the Defendant. The Defendant came
                          out with a case that the summons was served on her daughter, who was
                          minor and that summons was not brought to the notice of the
                          Defendant. The Defendant also pleaded the justi>cation of her husband
                          undergoing physiotherapy for Rt. Hemiplegia with behaviour cognitive
                          issue. The Trial Court has proceeded to accept the justi>cation pleaded
                          for condonation of delay of 37 days. In my view, exercise of discretion by
                          the Trial Court is not so irrational that this Court must exercise
                          extraordinary jurisdiction under Article 227 of the Constitution of India.
                          I am therefore, not inclined to interfere in the impugned order.


                          5)          Writ Petition is accordingly dismissed. There shall be no orders as
                          to costs.


                                                                                [SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab                                      Page No.2 of 2
Designation: PA To Honourable Judge                            4 March 2026
Date: 06/03/2026 20:48:06

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