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Sarasvatiben Lallubhai Parikh and anr. Vs. Kantilal Purshottam Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR152
AppellantSarasvatiben Lallubhai Parikh and anr.
RespondentKantilal Purshottam Patel
Excerpt:
- - 4. with respect to the learned trial judge since the plaintiff had not filed any affidavit-in-rejoinder controverting 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 learned trial judge stands it does not clearly appear on the face of it that this was a conditional leave to defend......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 he did.5. in any event the form in which the learned trial judge has framed his order is alsotjottorrect. the order is in these words:deposit rs 2000 within 4 weeks. leave to defend. suit to l.c. expedited w.s within 2 weeks u.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.....
Judgment:

B.J. Divan, J.

1. The petitioners in this Civil Revision Application 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 Suit was filed appearance was entered on behalf of the defendants and a summons for judgment was taken out by the plaintiff. On that summons for judgment the plaintiff put in his affidavit in support of the summons for judgment and the defendants applied for leave to defend 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 the plaintiff there was a cheque for Rs. 2000/- drawn by the defendants in his favour and that cheque was not presented to the Bank because the defendants had asked that it should not be presented. In that affidavitin-reply the defendants contention was that the cheque was not given at all to the plaintiff but was drawn in the name of the plaintiff at the instance of a firm of Shroffs and money-lenders Pari Navnitlal Mangaldas and that the suit was filed because the disputes and differences had arisen between the defendants and the firm of Pari Navnitlal Mangaldas.

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

3. Inspite of this position the learned trial Judge in the City Civil Court made a conditional order for depositing Rs. 2000/- within 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 controverting 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 he did.

5. In any event the form in which the learned trial Judge has framed his order is alsoTJoTTorrect. The order is in these words:

Deposit Rs 2000 within 4 weeks. Leave to defend. Suit to L.C. Expedited W.S within 2 weeks U.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. U.O.D.I. This is the correct form of passing an order of conditional leave and I have set out the correct form so that in future orders may be passed correctly. As the order of the learned trial Judge stands it does not clearly appear on the face of it that this was a conditional leave to defend.

I, therefore grant unconditional leave to defend this suit. The other directions about the filing of the Written Statement expediting and the usual order of discovery and inspection will however remain subject to this that the time will be computed from the date the writ in this C.R.A. reaches the Trial Court. 7 In the result this Civil Revision Application is allowed and the rule is made absolute. The opponent to pay the costs of the petitioners of this Civil Revision Application.


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