A.S. Qureshi, J.
1. This revision application has been filed by the defendant No. 4 to the Summary Suit filed by the present respondent No. 1 in the Court below.
2. The present respondent No. 1 had filed a suit for recovering a sum of Rs. 24, 900/- against respondents Nos. 2, 3 and 4. The present petitioner was impleaded as defendant in the suit, because he was alleged to have been a surety for the amount said to have been advanced by the plaintiff to the defendants Nos. 2, 3 and 4. The learned trial Judge had, after considering the defence and the documentary evidence, come to the tentative conclusion that the defendants had avalid defence and, therefore, he granted leave to defend but imposed the condition that the defendants should deposit a sum of Rs. 20, 901/-. Against this order of imposing a condition of depositing a sum of Rs. 20, 901/- that the present petition is filed.
3. Mr. V.C. Desai, the learned Advocate for the petitioner, has urged that once the trial Court comes to the conclusion that there is a plausible defence in the suit, it is neither fair nor just for the Court to impose a condition whereby more than 80% of the amount claimed is directed to be deposited in Court. Mr. Desai has further submitted that it is unfair to the defendant to call upon him to deposit any amount when there are triable issues between the parties and there is a possibility that the plaintiff's suit may ultimately be dismissed. According to him, the condition imposed by the learned trial Judge is unjust and deserves to be set aside.
Mr. N.S. Sheth, the learned Counsel for the respondent No. 1 (original plaintiff) has urged that, in his application for leave to defend, he has urged that he has not signed any document of surety in past three years which would mean that he may have entered into such a writing prior to three years and he submitted that, in any case, this does not seem to be a bona fide defence and, therefore, the learned Judge was justified in imposing the condition that he did.
4. Mr. Desai has relied on a decision of this Court in Saraswatiben Lallubhai Parikh and Anr. v. Kantilal Purshottamdas reported in : AIR1964Guj81 , wherein this Court has very clearly held that in a summary suit on negotiable instrument, when it was clear on perusal of the affidavit-in-reply filed by the defendant that a triable issue did arise on the averments set out and the plaintiff failed to file any affidavit-in-rejoinder controverting the statements of the defendant contained in the affidavit-in-reply, it was the duty of the Court to give to the defendant unconditional leave to defend. In this case, it is not pointed out that there was any affidavit-in-rejoinder filed controverting the statements made by the defendant in his affidavit in support of his application for leave to defend.
5. In the circumstances of the case, the petition is allowed. The impugned order of the learned trial Judge imposing the condition on the defendant to deposit a sum of Rs. 20, 901/- is hereby set aside. The defendant is held to be entitled to unconditional leave to defend. The defendant will file his written statement within four weeks from the receipt of writ by the trial Court. Writ to be sent to the lower Court forthwith. The trial Court is directed to take up the hearing of the suit immediately and to dispose it of not later than 31st March 1983
Rule made absolute. No order as to costs.