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2003 DIGILAW 2103 (MAD)

S. Rahamathullah v. Ratna Bai

2003-12-19

V.KANAGARAJ

body2003
Judgment :- This Civil Revision Petition has been filed under Section 115 C.P.C. praying to set aside the fair and decretal order dated 26.3.2003 made in I.A.No.5985 of 2002 in O.S.No.5731 of 2001 by the Court of VIII Assistant City Civil Judge, Chennai. 2. Tracing the history of the above civil revision petition having come to be filed, it comes to be known that the respondent-plaintiff has filed the suit in O.S.No.5731 of 2001 before the Court of VIII Assistant City Civil Judge, Chennai for recovery of a sum of Rs.38,800/=. Pending the suit, the petitioner/defendant has filed the petition in I.A.No.5985 of 2002 under Order 37 Rule 3(5) of C.P.C. praying to grant leave to the petitioner to defend the suit and, since, the said petition was dismissed by the Court below, the petitioner/defendant in the suit has come forward to file the civil revision petition on grounds such as the finding of the trial court that a perusal of Exs.R1 to R8 show that the goods were supplied to Rado Garments and that the same were received by the petitioner is without jurisdiction in that at the stage of enquiry in a petition for leave to defend the Court is not called upon to render a finding on merits; moreover the finding that the goods were received by the petitioner is not supported by any evidence whatsoever; that the trial court failed to note that mere production of Exs.R1 to R7 cannot fasten the liability on the petitioner for Exs.R1 to R7 are subject to proof and relevancy at the stage of trial; that the trial court failed to appreciate and consider the petitioner's plea that he was in no way connected with Rado Garments; that the trial Court failed to note that no proof has been placed before it to establish that the petitioner was carrying on business under the name and style of 'Rado Garments'; that the trial court failed to appreciate the reply dated 5.8.2001 given by the petitioner to the respondent's legal notice dated 18.7.2001. Hence, the present civil revision petition. 3. Hence, the present civil revision petition. 3. During arguments, the learned counsel appearing on behalf of the petitioner, besides reiterating those averments which have been traced in the above petition as extracted supra, would cite a judgment delivered in Prabakaran, N. v. Citibank reported in 2001 (4) CTC 178 , wherein it is held: "The petitioner reiterated all the averments made in his affidavit in support of the petition to leave to defend and he also referred to the judgment of the Supreme Court reported in AIR 1977 SC 577 , which was followed by this Court in Ramalingam v. Basavalingam, AIR 1991 Mad. 274 wherein principles were laid down while considering the application for granting leave to defend. A perusal of the impugned order shows that the court below, after referring to a letter dated 6.1.1977, which speaks of the closure of the loan, comes to a conclusion that the petitioner is bound to prove that the old loan has been discharged. This is what the learned Judge has said in his judgment. .... In an application for grant of leave to defend, the petitioner is not bound to prove to the court his case. The court is also not called upon at that juncture to test the veracity of the defence set up by the petitioner. What the court must do is to find whether the applicant has raised triable issues and whether defence is not sham or illusory and whether the petitioner has raised such issues, which if proved at that time of trial, will result in dismissal of the suit, if so he is entitled to be given leave to defend." 4. What the court must do is to find whether the applicant has raised triable issues and whether defence is not sham or illusory and whether the petitioner has raised such issues, which if proved at that time of trial, will result in dismissal of the suit, if so he is entitled to be given leave to defend." 4. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what could be understood from the whole of the affair connected to the above civil revision petition is that, the petitioner, who is the defendant in the suit, has sought for defending the suit filed by the other side and still, the court below refused to grant unconditional leave to defend, the petitioner and hence has come forward to file the above revision invoking the provision of Order 37, Rule 3(5) CPC and since it is this provision of law which is relevant for consideration, it is necessary for being extracted, which runs as follows:- "O.37, Rule 3(5) CPC:- 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 a 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." In the context of the wording of the above provision of law and the expression given by the learned single Judge of this Court in her order passed in a similar civil revision petition reported in 2001 (4) CTC 178 , (the relevant portion of which is extracted supra) and applying the facts and circumstances of the case to these norms of law, this Court is of the view that the petitioner has a concrete case for defence in the suit filed by the respondent, since he has raised triable issues, and the said defence cannot under any circumstance be termed as sham and illusory, and therefore, it is only desirable to permit him to defend the suit effectively and the lower court should have ordered permitting the petitioner to defend the suit, but instead, it has rejected his request to defend the same, as a result of which, this Court has to arrive at the only conclusion that is warranted in the circumstances of the case to set aside the order passed by the lower court and hence the following order. In result, (i) the above civil revision petition succeeds and the same is allowed; (ii) the fair and decretal dated 26.3.2003 made in I.A.No.5985 of 2002 in O.S.No.5731 of 2001 by the Court of VIII Assistant City Civil Judge, Chennai, is hereby set aside; (iii) consequently, C.M.P. No.9090 of 2003 is closed; (iv) however, in the circumstances of the case, there shall be no order as to costs.