GHULAM MOHAMMAD AKHOON Vs. MASOODUL HASSAN KHAN

JUDGEMENT

(1.) In a suit under Order 37 of Civil Procedure Code, the learned trial Judge vide order dated 8-9-2009 granted leave to the defendant-petitioner herein to defend the suit. Learned trial Judge after opining that "there are some triable issues between defendant and the plaintiff proceeded to grant the leave as aforesaid subject to the condition "that the defendant-petitioner herein makes a deposit of Rs. 1.00 lac in the Court within two months".

(2.) The petitioner-defendant aggrieved of the order dated 8-9-2009 to the extent of condition subject to which the leave was granted, has filed instant revision. The order impugned is assailed on the grounds that once the learned Judge was of the opinion "that there were some triable issues between the parties", the option to ask the petitioner-defendant to make a cash deposit of Rs. 1.00 lac, was not available with the learned trial Judge. The petitioner-defendant tracing the background of business relationship with the respondent-plaintiff insisted that the petitioner because of lack of sufficient resources is not in a position to make the deposit and that the learned trial Judge by imposing condition, has in effect denied the leave to defend the suit. It is pleaded that it being impossible for petitioner-defendant to make deposit because of the reasons spelt out in the petition; that the petitioner-defendant would not be in a position to fulfil conditions subject to which the leave has been granted and thus not avail the leave granted by the trial Judge. It is averred that the condition subject to which leave has been granted, is bound to result in miscarriage of justice. The requirements of cash deposit of Rs. 1.00 lac before availing leave to defend the suit, is also assailed as being without jurisdiction and thus liable to be set aside. Heard

(3.) Order 37 of CPC prescribes summary procedure for certain classes of suits enumerated in Rule 2. The defendant in class of suits falling within the ambit of Order 37, Rule 2, is not as in an ordinary suit entitled as of right to defend the suit. The defendant is required to apply for leave to defend the suit within the time prescribed under the order and the leave is to be granted only after an affidavit filed by the defendant discloses such facts as the Court may deem sufficient for granting the leave to the defendant to defend the suit. If the Court is not impressed by the case set up by the defendant for grant of leave to defend the suit and no leave to defend is granted, the plaintiff is entitled to a decree. The underlying object of Order 37 is to impart credibility to the financial commitments in the interest of stability of financial and business transactions and to prevent unreasonable obstructions by the defendant who has no defence. The defendant in order to persuade the Court to permit him to defend the suit, has to follow procedure laid down in Order 37, Rule 3 sub-rule (5). The defendant must, to succeed in an application for grant of leave to defend within 10 days from the service of summons for judgment by affidavit or otherwise place such facts before the Court as may be deemed sufficient to entitle him to defend the suit and seek leave to defend the suit. The Court may thereafter unconditionally or upon such terms as may appear to the Court to be just, grant leave to defend the suit. The leave to defend the suit is to be denied, if the Court is satisfied that the facts disclosed by the defendant, do not point to a substantial defence or that the defence intended to be put, is frivolous or Vexatious.