- (1.) Present petition under Section 115 CPC for setting aside order dated 21.9.2015, passed by learned Civil Judge (Junior Division), Gurgaon, whereby application, filed by the respondent/defendants, under Order 37 Rule 3(5) CPC read with Section 151 CPC for seeking unconditional leave to defend was accepted and leave to defend the suit was granted. Learned counsel for the petitioners, while assailing the said order, submitted that admittedly respondent No.1 had received payment of Rs. 40,00,000/- as per terms & conditions of agreement of sale of property and the property is still under litigation. The sale deed could not be executed because permission was not obtained by the respondents and there being no fault on the part of petitioners. The Court below accepted the application for permission to defend the suit under Order 37 CPC without considering the fact that there was no triable defence as payment of Rs. 40,00,000/- was admittedly received by the respondents. Hence, present petition be accepted and order dated 21.9.2015 be set aside.
(2.) Learned counsel for the respondents submitted that the Court below has rightly considered that there was triable defence available to the respondents in this case and accordingly permission for leave to defend was granted and present petition is liable to be dismissed.
(3.) Having considered the submissions made by learned counsel for the parties, this Court is of the considered view that as per the provisions of Order 37 CPC, a person can certainly seek permission to defend the suit if he has some triable defence for seeking trial in the case. For that purpose, he has to put in appearance before the Court in pursuance of notice and that has already been done in the present case. The only point to be seen is whether the Court below has rightly granted leave to defend the suit or not.;