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Saraswatiban Lallubhai Parikh and anr. Vs. Kantilal Purshottamdas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 934 of 1963
Judge
Reported inAIR1964Guj81; (1964)GLR152
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rule 3
AppellantSaraswatiban Lallubhai Parikh and anr.
RespondentKantilal Purshottamdas
Appellant Advocate M.F. Thakkar, Adv.
Respondent Advocate R.N. Shah, Adv. for; N.C. Thakkar, Adv.
DispositionRevision allowed
Excerpt:
- - 4. with respect to the learned trial judge, since the plaintiff had not filed any affidavit-in-rejoinder, controver-ing the statements set out in the affidavit-in-reply on the summons for judgment, it was his duty to give unconditional leave to defend to the defendants, the reason being that triable issues clearly emerge on a perusal of the affidavit in-reply filed by the defendants on the summons for judgment. under these circumstances, the order passed by the learned trial judge was clearly erroneous and must be set aside. as the order of the leanred trial judge stands, it does not clearly appear on the face of it that this was a conditional leave to defena......defendants, the reason being that triable issues clearly emerge on a perusal of the affidavit in-reply filed by the defendants on the summons for judgment. under these circumstances, the order passed by the learned trial judge was clearly erroneous and must be set aside. it was incumbent upon him to give unconditional, leave to defend and not put the condition in the manner be did.5. in any event, the form in which the learned thatjudge has framed his order is also not correct, the order isin these wards: 'deposit rs. 2000/- within 4 weeks. leave to defena. suit to l. c. expedited w.s. within 2 weeks o.o.d.i.'i presume that the learned judge wanted to grant conditional leave to the defendants to defend the suit. in that event the form of the order should have been:'on the defendants.....
Judgment:
ORDER

B.J. Divan, J.

1. The petitioners in this Civil Revision Applica-tion are original defendants and the opponent is the original plaintiff in Suit No. 1118 of 1963, which was filed by the plaintiff as a Summary suit. After the Summary sun was filed, appearance was entered on behalf of the defen-dants and a summons for judgment was taken out by the plaintiff. On that summons for judgment, tne piaintitf put in his affidavit in support of the summons for judgment and the defendants applied for leave to detend and also put in their affidavit-in-reply setting out their version of the facts which led to the disputes between the parties. According to tne plaintiff, there was a cheque for Rs. 2000/- drawn by the defendants in his favour and that crteque was not presented to the Bank because the defendants had asked that it should not be presented . In the affidavit-in-reply the defendants' contention was that the cneque was not given at all to the plaintiff but was drawn in the name of the piaintitf at the instance of a firm of shrotts and moneylenders. Pari Navnitial Mangaidas, and that the suit was filed because the disputes and differences had arisen bet-ween the defendants and the firm of Pari Navnitlal Mangaicas.

2. It is clear on a perusal of the affitfavit-in-reply that a triable issue did arise on the averments set out in the affidavit-in-reply. tO controvert these statements in the aftidavit-in-reply of the defendants, no affidavit-in-rejoinder was filed by the plaintiff and, therefore, the plamtiff must be deemed to have admitted the statements of fact set out in the affidavit-in-reply.

3. In spite of this position, the learned trial Judge in the City Civil Court made a conditional order for depositing RS. 2000/- witnin four weeks and granted conditional leave to defend and it is against that order that the present Civil Revision Application has been filed.

4. With respect to the learned trial Judge, since the plaintiff had not filed any affidavit-in-rejoinder, controver-ing the statements set out in the affidavit-in-reply on the summons for judgment, it was his duty to give unconditional leave to defend to the defendants, the reason being that triable issues clearly emerge on a perusal of the affidavit in-reply filed by the defendants on the summons for judgment. Under these circumstances, the order passed By the learned trial Judge was clearly erroneous and must be set aside. it was incumbent upon him to give unconditional, leave to defend and not put the condition in the manner be did.

5. In any event, the form in which the learned thatJudge has framed his order is also not correct, the order isin these wards:

'Deposit Rs. 2000/- within 4 weeks. Leave to defena. Suit to L. C. Expedited W.S. within 2 weeks O.O.D.I.'

I presume that the learned Judge wanted to grant conditional leave to the defendants to defend the suit. In that event the form of the order should have been:

'On the defendants depositing a sum of Rs. 2000/- within 4 weeks from today leave to defend. On the deposit being made as above, suit to be transferred to the list of long causes and Written Statement within 4 weeks thereafter, O.O.D.I.'

This is the correct form of passing an order fo conditional leave and I have set out the correct form so that In future orders may be passed correctly. As the order of the leanred trial Judge stands, it does not clearly appear on the face of it that this was a conditional leave to defena.

6. I, therefore, grant unconditional leave to defena this suit. The other directions about the filing of the Written Statement, expeditiong and the usual orders of discovery and inspection will, however, remain, subject to this that the time will be computed from the date the writ int his C.R.A. reaches the Trial Court.

7. In the result, this Civil Revision Application is allowed and the rule is made absoulute. The opponent to pay the costs of the petitioners of this Civil Revision Application.


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