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2009 DIGILAW 4861 (MAD)

G. Padmavathi v. A. Saravnaraj

2009-11-12

M.VENUGOPAL

body2009
Judgment :- The petitioner/defendant has preferred this Civil Revision Petition as against the order dated 212. 2006 in I.A.No.18689 of 2006 in O.S.No.6272 of 2006 passed by the learned III Assistant Judge, City Civil Court, Chennai in dismissing the application filed by the revision petitioner/defendant under Order 37 Rule 3 of Civil Procedure Code to grant unconditional leave to defend the suit. 2. When the matter is taken up for hearing, there is no representation on behalf of the petitioner/defendant. Heard the learned counsel for the respondent/plaintiff. 3. On perusing the Memorandum of grounds filed in the present Revision filed on behalf of the revision petitioner it is quite evident that it is the stand of the revision petitioner/defendant that the impugned order of the trial Court in I.A.No.18689 of 2006 in O.S.No.6272 of 2006 dated 212. 2006 is against law and weight of evidence and probabilities of the case and the trial Court has failed to consider that the pro-note itself is a forged one and further the trial Court has committed an error in considering that there is no clear averment with the revision petitioner signature has been forged etc., and the trial Court has not taken into account of another fact that the pro-note was a fabricated one and that the respondent has not sent any notice to the petitioner in demanding principal and interest sum and looking at from any angle, the order passed by the trial Court suffers from serious infirmities and illegalities and therefore prays for allowing the Civil Revision Petition in the interest of justice. 4. It is to be noted that I.A.No.18689 of 2006 in O.S.No. 6272/2001 on the file of the learned III Assistant Judge, City Civil Court, Chenni has been filed by the revision petitioner/defendant under Order 39 Rule 3 of Civil Procedure Code praying permission of the trial Court to grant unconditional leave to him to defend the suit. The leave to defend ought to be given unconditionally, if the revision petitioner/defendant establishes the prima facie case or raises a triable issue. However a Court of Law can grant leave conditionally if the Court finds bona fide of the revision petitioner/defendant or thinks that the defence intended to be put to enrich time. 5. The contention of the respondent/plaintiff counsel is that as against the order passed in I.A.No.18689 of 2006 dated 212. However a Court of Law can grant leave conditionally if the Court finds bona fide of the revision petitioner/defendant or thinks that the defence intended to be put to enrich time. 5. The contention of the respondent/plaintiff counsel is that as against the order passed in I.A.No.18689 of 2006 dated 212. 006 by the trial Court only an appeal remedy lie and as such the revision petition filed by the revision petitioner/defendant is not per se maintainable before this Court. 6. At this juncture, it is to be borne in mind that on the dismissal of the application filed under Order 37 Rule 3 of Civil Procedure Code, viz., I.A.No.18689 of 2006 refusing leave to defend partakes the form of judgment and only a regular appeal will lie against the order so passed by the trial Court and resultantly, the revision petition filed by the revision petitioner/defendant is per se not maintainable and that the interlocutory order refusing leave to defend partakes form of judgment, thereby making it vulnerable to assault only through substantive and regular and subsequent appeal where the revision petitioner/defendant can avail second opportunity to present its defence by filing an appeal. 7. In that view of the matter the Civil Revision Petition is dismissed as not maintainable. Considering the facts and circumstances of the case the parties are directed to bear their own costs. Consequently, connected miscellaneous petition is closed.