Under Article 159 of the Limitation Act, 1908, limitation for filing application for leave to appear and defend is ten days, which starts from the date of service.

 2023 CLC 1131

Under Article 159 of the Limitation Act, 1908, limitation for filing application for leave to appear and defend is ten days, which starts from the date of service. A perusal of the record reveals that the appellant/defendant in this case could not have been served through summons, but he was served through publication of notice in the newspaper. Even on his appearance before the Court, through his counsel on 25.09.2020, he was not provided a copy of the plaint and the annexures. It was the responsibility of the plaintiff to provide copy of the plaint along with annexures to the defendant and not that of the defendant/appellant to demand a copy thereof. Purpose behind issuance of summons along with copy of the plaint and the annexures is that the defendant/appellant should gain knowledge of pendency and nature of the suit against him. The duty of the Court is not only to issue summons but the Court is also obliged to issue summons according to the Form IV, so that the defendant should attend the Court proceedings with a prepared mind, as intended by the summary trial under Order XXXVII, CPC. Unless the defendant is not informed regarding pendency of case in the required mode and manner, no delay or default can be attributed to him regarding filing of application for leave to defend within the limitation provided by law. There is some special intention behind it that suit under Order XXXVII, CPC, is differentiated from the ordinary suit and summary procedure has been provided for such a suit, for which Form IV has been specially formulated, wherein not only a plaint must have been attached in order to notify the defendant about the pendency of the case but also inform him through this Form that he has only limited period to approach the Court and get permission to appear and defend the suit, otherwise his right will be struck down due to penal clause attached thereto. Unless the defendant is handed over copy of the plaint for filing of leave to defend as required by law, no delay or default can be attributed to him.