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2002 DIGILAW 306 (MAD)

T. Rajmohan v. C. Chockalingam

2002-04-05

P.D.DINAKARAN

body2002
ORDER: Aggrieved by an order dated 21.8.2001 made in I.A. No.2304 of 2001 in O.S. No.5304 of 2000 on the file of the learned I Assistant City Civil Judge, Chennai, permitting the respondent/ defendant to defend his case under O.37, Rule 5, C.P.C., the plaintiff in O.S. No.5354 of 2000, laid for recovery of money to the tune of Rs.1,70,000 along with interest at Rs.2.50 per Rs.100 per month, has filed the above revision. 2. O.37, Rule 5 of the Code of Civil Procedure reads as follows: “O.37, Rule 5, C.P.C.: (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.” 3. The first proviso to O.37, Rule 5 confers a right on the defendant to seek leave to defend himself, and such right shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious. 4. The first proviso, therefore, makes it clear that the defendant who seeks a leave to defend himself under O.37, Rule 5, C.P.C., should satisfy the Court that he has a substantial defence to raise and that the defence is not frivolous or vexatious, in which event, the Court shall not refuse the leave to defend. 4. The first proviso, therefore, makes it clear that the defendant who seeks a leave to defend himself under O.37, Rule 5, C.P.C., should satisfy the Court that he has a substantial defence to raise and that the defence is not frivolous or vexatious, in which event, the Court shall not refuse the leave to defend. But the said proviso further imposes a bar in granting such leave to the extent of amount claimed by the plaintiff, if admitted by the defendant to be due from him. 5. If the averment of the respondent/ defendant is tested in the light of the provisions contained in O.37, Rule 5, C.P.C., since the revision petitioner/plaintiff himself has stated that there was due towards hand loan of Rs.30,000 availed by the respondent/ defendant from the revision petitioner/ plaintiff, no leave can be granted to the respondent/ defendant on account of such claim of the revision petitioner/ plaintiff. This aspect of the case has not been dealt with by the learned I Assistant City Civil Judge, Chennai, while granting leave by order dated 21.8.2001 made in I.A. No.2304 of 2001 in O.S. No.5454 of 2000. Hence, I am obliged to modify the order dated 21.8.2001 in I.A. No.2304 of 2001 in O.S. No.5354 of 2000 on the file of the learned I Assistant City Civil Judge, Chennai, granting leave to the respondent/ defendant to defend his case in O.S. No.5354 of 2000, on condition that the respondent/ defendant deposits a sum of Rs.30,000 to the credit of O.S. No.5354 of 2000 within four weeks from the date of receipt a copy of this order, which shall be disbursed subject to the result of the suit, and till then, the learned I Assistant City Civil Judge, Chennai, is directed to deposit the said amount in fixed deposit in a nationalised bank for a minimum period of one year, which shall be renewed from time to time during the pendency of the suit. 6. The revision is ordered accordingly. No costs. Consequently, C.M.P.No.16833 of 2001 is closed.