- (1.) This is defendant's revision against an order dated 10.11.2014 passed by Civil Judge (Sr. Div.), Room No.14, Allahabad in Suit No. 1014 of 2012 (hereinafter referred to as the suit) by which application no. 51 Ga moved by the defendant-revisionist, under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code), to allow the defendant to cross-examine the plaintiff's witness and argue the matter on legal points, has been rejected by the court below. The court below rejected the said application on the ground that the suit was a summary suit wherein the leave to defend was granted on a condition which the defendant failed to fulfill therefore the defendant was entitled to judgment forthwith, under Order XXXVII Rule 3 (6)(b) of the Code, and as such the defendant had no right to cross-examine the plaintiff's witnesses or to address the Court in defense.
(2.) The question that arise for adjudication in this case is that, whether in a summary suit, under Order XXXVII of the Code, where the defendant has been granted leave to defend on a condition and that condition has not been fulfilled, would the defendant still have a right to cross examine the plaintiff's witness or not.
(3.) Briefly stated the facts of the case are that the plaintiff-respondent was awarded construction works by the defendant/University. In respect of payment for the said works, according to the plaintiff, a Memorandum of Understanding dated 19.12.2006 was entered into between the plaintiff and the defendant wherein both parties agreed that the total value of the work executed by the plaintiff was of Rs.26,32,72,391/- and it was agreed that after deducting the payment already made to the plaintiff, the balance would be paid by the defendant to the plaintiff in three installments. The suit, under Order XXXVII of the Code, was instituted against the defendant-revisionist, claiming that after deducting the amount already paid by the defendant-University, as per Memorandum of Understanding dated 19.12.2006, the plaintiff was entitled to receive a sum of Rs. 4,69,00,751/- besides interest at the rate of 12% per annum with effect from 29.08.2009. In the suit, the defendant-revisionist entered an appearance and upon service of the summons for judgment, applied for leave to defend. The trial court, by its order dated 25.07.2013, granted unconditional leave to defend subject to filing of written statement by 29.08.2013. Pursuant to the order of the trial court, a written statement was filed. However, against the order dated 25.07.2013, the plaintiff filed Civil Revision No. 380 of 2013 before this Court. The said revision was partly allowed by order dated 23.09.2014 thereby making the leave to defend conditional on: (a) deposit of 50% of the total amount, as claimed by the plaintiff in the suit, in cash; and (b) furnishing adequate security for the remaining half to the satisfaction of the court below, within six weeks from the date of the order passed by the revisional court. Against the order of this Court dated 23.09.2014, the defendant filed a Special Leave Petition before the Apex Court. The Special Leave Petition was dismissed by order dated 15.12.2014. However, the time for deposit of 50% of the total amount by cash as well for furnishing security of the remaining half was extended by another two weeks from the date of the order passed by the Apex Court. In the meantime, during the pendency of Special Leave Petition before the Apex Court, on 10.11.2014, vide application no. 51 Ga, the defendant sought cross-examination of the plaintiff's witness as also liberty to address the court on legal points, which was rejected by the impugned order by placing reliance on clause (b) of sub rule (6) of Rule 3 of Order XXXVII of the Code. It is not in dispute that even within the extended time granted by the Apex Court the condition imposed by this Court for granting leave to defend was not fulfilled by the defendant.;