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Report No. 89

Chapter 42

Articles 118 To 136: Applications In Specified Cases

42.1. Article 118.- article 118 Rends As Unde.-

"For leave to appear and defend a suit under summary procedure. Ten days. When the summons is served."

This corresponds, in substance, to Article 159 of the Acts of 1908 and 1877. They read as unde.-

"For leave to appear and defend a suit under summary procedure referred to in section 128(2)(f) or under Order XXXVII of the same Code (Code of Civil Procedure, 1908). Ten days. When the summons is served."

42.2.Order 37, C.P.C.- The article has to be read with Order 37, Code of Civil Procedure, 1908, which lays down the procedural law applicable to suits triable under the summary procedure. The Courts and suits governed by the Order are enumerated in Order 37, rule 1. It is enough to note that their range and ambit have been considerably widened by the amendments made in 1976 in the Code. The procedure to be followed step-by-step is provided for in Order 37, rules 2 and 3. The remaining rules of the Order deal with matters of detail.

The scheme laid down in Order 37, rules.-3, for the trial of a suit under the summary procedure (so far as is material for the present purpose) can be said to comprise several stages, of which two are important

(i) appearance by the defendant, and

(ii) seeking leave to defend.

There are two distinct categories "of summons envisaged by Order 37, rule 3, corresponding to the two stages mentioned above:

42.3.Outline of the procedure.- In outline, the procedure under Order 37, is as unde.-

(1) After the summons for appearance is issued to the defendant, he may, under Order 37, rule 3(1), enter an appearance within 10 days.

If he enters an appearance, he has to file in court an address for service. On the date of entering the appearance, he has to serve or send a "notice of appearance" to the plaintiff.

After the appearance is so entered, the plaintiff has to serve on the defendant a summons for judgment (in the prescribed form), returnable, not leis than 10 days from the date of service. The summons must be accompanied by an application verifying certain facts.

(2) The ne.-and the second most importa.-stage is the seeking by the defendant of leave to defend. Under Order 37, rule 3(5), within ten days from the service of the summons for judgment, the defendant may, by affidavit or otherwise disclosing sufficient facts, apply for leave to defend the suit. If leave is not sought or (though sought) is not granted, a decree follows. If leave is granted, the trial proceeds.

(We are not, in the present Report, concerned with the considerations to be taken into account by the Court while considering the grant of leave).

42.4.Proposal of Government of Maharashtra.- We have referred above to the provisions in the Code of Civil Procedure in view of the fact that we find that the Government of Maharashtra has, for sometime, been actively considering a proposal for amending Article 118 of the Limitation Act and also the relevant provisions of Order 37 of the Code of Civil Procedure, with a view to mitigating certain difficulties that have been experienced under the present provisions.

The Government of Maharashtra has stated1 that the period of limitation of ten days under Article 118 is found to be too short, by persons residing outside the jurisdiction of the court and by the big concerns (including Government departments and local authorities) who require more time to obtain orders of their appropriate authorities. Similarly, the present procedure (in Order 37, C.P.C.) of first entering appearance and then obtaining leave to defend, results in avoidable delay and cost to both the parties.

To save the litigant from such hardship, the State Government has proposed that in a summary suit when the summons is served, the defendant should apply for leave to defend and, for this purpose, the period of limitation should be extended to thirty days from the date on which the summons is served on him. The proposal is to amend Article 118 in its application to the State of Maharashtra for this purpose, after which amendment, it is expected that the High Court will take necessary action to amend Order 37, C.P.C. suitably.

The High Court, it is stated, has been consulted and is in favour of the amendment. The proposal was forwarded by the State Government to the Government of India for Administrative approval according to the instructions of the Government of India regarding legislative proposals concerned with matters in the Concurrent List.

Copies of the relevant papers were forwarded to this Commission by the Legislative Department of the Government of India, with a request for information as to whether any proposal for amendment of Article 118 has been considered by the Commission for amendment of Article 118 and, if so, with what result. Though there is, before us, no formal suggestion for amendment of the article, we have found the proposal of the Government of Maharashtra as deserving of favourable consideration.

1. Papers in Government of India Legislative Department File, F.14(138)/81-Leg. II; Maharashtra State L.A. Bill No. 94 of 1981 entitled, "The Limitation (Maharashtra Amendment) Bill, 1981" introduced in the State Assembly 30 November, 1981.

42.5.Proposal to be viewed favourably.- Since the proposal of the Government of Maharashtra is a composite one, involving an amendment both of the Code of Civil Procedure, 1908 and of Article 118 of the Limitation Act, we are not, in this Report, recommending any amendment of Article 118 of the Limitation Act on an all-India basis.

At the same time, it appears to us that acceptance of the proposal of State Government of Maharashtra for amendment of the Limitation Act in its application to that State is ultimately likely to improve the expeditious disposal of Summary Suits, and our recommendation for the present is that any such proposal by a State Government for replacing the various stages of Order 37, rule 3 by a simpler mode of trial should, in principle, be viewed favourably.

If the experience of working of the proposed procedure in the State or States where such an amendment is effected shows good results, it will be worthwhile to consider the in corporation of similar amendments on an all-India basis in the Code of Civil Procedure, 1908, Order 37 and in Article 118 of the Limitation Act, 1963.

42.6.Verbal point regarding leave to appear.- A verbal point concerning Article 118 any be mentioned at this stage. The first column of the article describes the application as one "for leave to appear and defend a suit under summary procedure". However, it should be mentioned that Order 37, rule 3, as it now stands, does not require leave for appearance of the defendant, though leave is still required for defending the suit.

In order to ensure that this position is reflected in the Limitation Act, we would have considered recommending a verbal change in the first column. However, it should, at the same time, be pointed out that a number of time limits, for taking various steps contemplated by the rules of procedure are specified in the rules al.-Order 37, rules 3(1) to 3(5).

Somewhat elaborate amendments may be required in Order 37, rule 3.

42.7.Recommendation.- In view of what we have stated above in our comments on the proposal of the Government of Maharasht.-a proposal involving substantial amendments in the procedural provisio.-we think that it would be more beneficial if instead of a mere verbal amendment of Article 118, the procedural scheme itself receives consideration from the point of view of the numerous stages envisaged at present by Order 37, rule 3, C.P.C. After the State amendments (when they materialise) are given a trial, this can be taken up. Along with an amendment of Order 37, C.P.C., Article 118 of the Limitation Act can also then be amended so as to increase the period to 30 days.1

1. For future action at the appropriate time.

42.8.Article 119.- This takes us to Article 119, which reads as under:

"119 Under the Arbitration Act, 1940-
(a) for the filling in court of an award; Thirty days The date of service of the notice of the making of the award;
(b) for setting aside an award remitted for reconsideration. Thirty days. The day of service of the filling of the award."

Articles 158 and 178 of the Act Act, 1940, read as under:

"158. Under the Arbitration Act, 1940, to set aide an award or to get an award remitted for reconsideration. Thirty days. The date of service of the notice of filling of the award.
178 Under the Arbitration Act, 1940, for the filling in court of an award. Ninety days. The date of service of the notice of the making of the award."

Corresponding provisions in the read as under:

"158. Under the Code of Civil Procedure to set aside an award. Ten days. When the award is submitted to the Court.
176 Under the Code, of Civil Procedure, section 516 or 525, that an award by filed in Court. Six months. The date of the award."

Corresponding provisions in the 1871 Act were Articles 155 and 165, which read as under:

"155. Under the Code of Civil Procedure to set aside an award. Ten days. When the award is submitted to the Court and notice of the submission has been given to the person and in manner prescribed by the High court.
165 Under the Code of Civil Procedure, section three hundred and twenty seven, that an award be filed in Court. Six Months. The date of the award."

It may be mentioned that in the present Act, the period has been made uniform.

42.10.Arbitrator filing award in court.- The question of the arbitrator filing an award is of interest. In a Nagpur case1, after summarising the case law, the court observed:

"It has been held in a series of cases that Article 178 of the Limitation Act (of 1908) does not apply to (the) arbitrator, i.e. to the arbitrator who himself files the award."

1. Goonda Lal v. Mathura Das, AIR 1957 Nag 32.



The Limitation Act, 1963 Back




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