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Parambathakandi Olayatt Kunchu Vs. Ussan Kasim Sait by Muktyar Sale Mamad Usman Sait and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in119Ind.Cas.64
AppellantParambathakandi Olayatt Kunchu
RespondentUssan Kasim Sait by Muktyar Sale Mamad Usman Sait and anr.
Excerpt:
civil procedure code (act v of 1908), section 115 - conclusion opposed to finding--revision. - .....of the lower court giving conditional permission to the petitioner to defend the case only on giving security is right, ft has been found by the court that the petitioner has a defence which has to be considered. it has also found that the plaintiff has seemingly a strong case. in view of the opinion of the learned judge which i have stated above, it cannot be said that there are no bona fides on the part of the 2nd defendant. in these circumstances i think the learned judge should have granted permission to the petitioner to defend the case unconditionally. of course, this court interferes only very rarely under section 115 of the civil procedure code. but when the conclusion of the judge is obviously opposed to the finding expressed in the body of the judgment i think it is a case.....
Judgment:

Madhavan Nair, J.

1. The question for consideration in this case is whether the order of the lower Court giving conditional permission to the petitioner to defend the case only on giving security is right, ft has been found by the Court that the petitioner has a defence which has to be considered. It has also found that the plaintiff has seemingly a strong case. In view of the opinion of the learned Judge which I have stated above, it cannot be said that there are no bona fides on the part of the 2nd defendant. In these circumstances I think the learned Judge should have granted permission to the petitioner to defend the case unconditionally. Of course, this Court interferes only very rarely under Section 115 of the Civil Procedure Code. But when the conclusion of the Judge is obviously opposed to the finding expressed in the body of the judgment I think it is a case where this Court should interfere and set aside the order. The order is, therefore, set aside. Each party will bear its own costs. Of course, the order giving the 2nd defendant leave to defend will remain.

2. The only order that is set aside is that part of it which related to the imposition of the security.


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