SARASWATIBAN LALLUBHAI PARIKH Vs. KANTILAL PURSHOTTAMDAS
LAWS(GJH)-1963-10-1
HIGH COURT OF GUJARAT
Decided on October 10,1963

SARASWATIBAN LALLUBHAI PARIKH Appellant
VERSUS
KANTILAL PURSHOTTAMDAS Respondents

JUDGEMENT

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.;


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