JUDGMENT :- 1. This Civil Revision Petition is filed against an order made in I.A.No. 1360 of 2009 in O.S.No.8168 of 2008 on the file of the City Civil Court, Chennai, wherein and whereby the application filed by the petitioner herein under Order 37 Rule 3(5) of CPC was dismissed. 2. The petitioner herein filed the said application seeking permission to defend the suit filed by the respondent herein. The said suit came to be filed by respondent seeking for the relief of recovery of a sum of Rs. 3,61,032/- along with 24% interest per month based on a construction agreement entered into between the parties. 3. It is the case of the respondent as the plaintiff that they are the building promoters and promoted an apartment at Door No. 34/16 B , North Tank Square Street, Triplicane, Chennai 5, which was owned by one Mr.Kasthuri Rangan and others. It is the further case of the plaintiff that the petitioner herein as the defendant approached them and offered to purchase a flat of an extent of 747 sq. ft of built up area along with common area and 225 sq. ft of undivided share in the land for a total consideration of Rs.12,69,900/- consisting of land and construction cost. A construction agreement was entered into on 21.10.2004 and the defendant had agreed to pay a sum of Rs. 10,81,200/- towards the construction cost. The plaintiff completed the construction within the stipulated period and the defendant has also taken possession of the flat in the month of January 2006. The plaintiff also did some additional works in the flat as per the request made by the defendant which works out to a sum of Rs. 65,000/- as the cost and as such the defendant has to pay a sum of Rs. 13,34,900/- in total. Since the defendant had paid only Rs.11,20,000/- so far and is liable to pay the balance amount of Rs. 3,61,032/-, the above said suit came to be filed by the respondent herein. 4. Since the said suit came to be filed under Order 37 Rule 1 CPC as a summary suit, the petitioner herein filed I.A.No. 1360 of 2009 seeking leave to defend the suit. 3,61,032/-, the above said suit came to be filed by the respondent herein. 4. Since the said suit came to be filed under Order 37 Rule 1 CPC as a summary suit, the petitioner herein filed I.A.No. 1360 of 2009 seeking leave to defend the suit. In the affidavit filed in support of the said application, the petitioner contended that the plaintiff though stated in the plaint that they have carried out additional work as per her request, has not chosen to set out the details of alleged additional work carried out by them. It is also stated by the petitioner that the plaintiff has not stated that they have delivered an extent of 747 sq.ft of constructed area to the petitioner and in the absence of such averment in the plaint, the plaintiff will not be entitled to claim the amount mentioned in the agreement. 5. It is the specific case of the petitioner that she issued a notice on 17.3.2007 to the plaintiff complaining about the non-delivery of 747 sq.ft of constructed area apart from indicating the defects in the construction etc. The plaintiff did not reply to the said notice and on the other hand they referred the said notice in the their suit notice issued to the petitioner. It is the further case of the petitioner that the plaintiff has not carried out his part of the agreement and the claim is also bared by limitation. The petitioner further contended that the plaintiff had put up some unauthorised illegal construction over the second floor, which is likely to endanger the approved construction. Thus, by contending so, the application was filed under Order 37 Rule 3 (5) CPC seeking leave of the Court to permit the petitioner to defend the suit. 6. The said application was resisted by the respondent herein as the plaintiff by contending that the petitioner is bound to pay the suit claim as per the construction agreement and an extent of 747 sq. ft. of constructed area was delivered to the petitioner. The respondent also denied any illegal construction. It is also their case that the suit is not barred by limitation. 7. ft. of constructed area was delivered to the petitioner. The respondent also denied any illegal construction. It is also their case that the suit is not barred by limitation. 7. The Court below after hearing both sides rejected the application by holding that since the petitioner had not replied to the notice under Ex.R4, the suit is maintainable under Order 37 Rule 1 CPC and that the suit is also not barred by limitation in view of the fact that the last payment made on 27.10.2005 as found in the plaint establishes that the suit is well within the time of limitation. The Court below has also observed that there are no triable issues arising out of the petition. Aggrieved against the said order, the present Civil Revision Petition is filed before this Court. 8. Heard the learned counsel appearing for either parties. 9. The learned counsel for the petitioner Mr.A.S.Narasimhan submitted that the petitioner has made out a case before the Court below for granting leave to defend the suit under Order 37 Rule 3(5) CPC. He further submitted that the averments made in the affidavit filed in support of the application, if considered in a proper and perspective manner, would certainly reveal that there are triable issues for the Court below to decide by conducting a regular trial of the suit. He further submitted that the Court below has not assigned any valid and justifiable reasons for rejecting the application except by saying that there are no triable issues arising out of the petition. In support of his submissions, the learned counsel relied on the decisions reported in Ajay Bansal Vs. Anup Mehta and Others (2007 (3) CTC 604); Shivsu Canadian Clear International Limited Vs. Freightcan Global Logistics Private Limited ( 2013 (3) CTC 305 ): Wada Arun Asbestos (P) Ltd., Vs. Gujarat Water Supply and Sewerage Board ( 2009 (2) SCC 432 ); G.Rajarajan Vs. AIG Consumer Financial Services (India ) Ltd. ( 2012 (4) L.W. 155 ) and contended that the Civil Revision Petition filed against the order rejecting the application filed under Order 37 Rule 3(5) CPC is maintainable. 10. Gujarat Water Supply and Sewerage Board ( 2009 (2) SCC 432 ); G.Rajarajan Vs. AIG Consumer Financial Services (India ) Ltd. ( 2012 (4) L.W. 155 ) and contended that the Civil Revision Petition filed against the order rejecting the application filed under Order 37 Rule 3(5) CPC is maintainable. 10. Per contra, the learned counsel appearing for the respondent submitted that the suit claim was based on a construction agreement as admitted by the petitioner and therefore the suit filed under Order 37 Rule 1 CPC as a summary suit is maintainable and consequently the petitioner is not entitled to seek the relief of leave of the Court to defend the suit. He also submitted that there are no triable issues in view of the fact that the petitioner has to pay the suit claim as per the construction agreement admittedly entered into between the parties. In any event, the learned counsel appearing for the respondent submitted that in case this Court is of the view that the application is to be allowed then the petitioner may be directed to deposit 50% of the suit claim and also by fixing a time frame for the Court below to dispose of the suit. 11. I have considered the rival submissions made by the respective learned counsels. 12. First of all, with regard to maintainability of the Civil Revision Petition before this Court as against the order made under Order 37 Rule 3(5) CPC in rejecting the application, I myself have considered the said issue in a case reported in G.Rajarajan Vs. AIG Consumer Financial Services (India ) Ltd. ( 2012 (4) L.W. 155 ) and held that the Revision is maintainable. I drew support from the decision of the Hon'ble Supreme Court reported in Wada Arun Asbestos (P) Ltd., Vs. Gujarat Water Supply and Sewerage Board ( 2009 (2) SCC 432 ) to hold that the Revision is maintainable. The said order of mine was subsequently considered by another learned single Judge (Hon'ble S.Nagamuthu,J.) in a decision reported in 2013 (3) CTC 305 (Shivsu Canadian Clear International Limited Vs. Gujarat Water Supply and Sewerage Board ( 2009 (2) SCC 432 ) to hold that the Revision is maintainable. The said order of mine was subsequently considered by another learned single Judge (Hon'ble S.Nagamuthu,J.) in a decision reported in 2013 (3) CTC 305 (Shivsu Canadian Clear International Limited Vs. Freightcan Global Logistics Private Limited ), wherein the learned Judge has elaborately discussed the issue and ultimately held that the defendant has got every right to challenge the order in rejecting the application seeking leave to defend the suit by filing a revision either under Article 227 of the Constitution of India or under Section 115 of CPC before this Court. The learned Judge also drew support to such view from the decision of the Hon'ble Apex Court reported in Wada Arun Asbestos (P) Ltd., Vs. Gujarat Water Supply and Sewerage Board ( 2009 (2) SCC 432 ). Therefore, by applying the above case laws, the Civil Revision Petition filed before this Court challenging the rejection order made under Order 37 Rule 3(5) CPC is to be held maintainable. 13. While coming to the merits of the matter, it is seen that the respondent filed a suit for recovery of a sum of Rs. 3,61,032/-along with 24% interest based on the construction agreement entered between them and the petitioner herein. The various averments contained in the plaint would show that the plaintiff is claiming a total sum of Rs. 13,34,900/- towards the cost of construction and land which includes the cost towards the additional construction work to the tune of Rs. 65,000/-. 14. Per contra, the contention of the petitioner in the application filed before the Court below shows that she is not admitting the averments made with regard to additional construction as well as handing over of 747 sq. ft of the constructed area as per the construction agreement. The petitioner also raised the plea of limitation. Thus, the entire perusal of the affidavit filed by the petitioner in support of her application would certainly disclose that there are no admissions of any of the claim made by the plaintiff in the plaint. On the other hand, there are only denials with certain allegations and counter claim, which are necessarily required to be tried by conducting a regular trial after giving due opportunity to the respective parties to adduce their respective evidence in support of their pleadings. On the other hand, there are only denials with certain allegations and counter claim, which are necessarily required to be tried by conducting a regular trial after giving due opportunity to the respective parties to adduce their respective evidence in support of their pleadings. what is to be seen while considering the application under Order 37 Rule 3(5) CPC is as to whether the averments made in the application disclose triable issues or not. 15. At this juncture, I would like to reiterate my findings rendered in the other case reported in G.Rajarajan Vs. AIG Consumer Financial Services (India ) Ltd. ( 2012 (4) L.W. 155 ) and the relevant paragraph 19 is extracted hereunder:-"19. The Court below ought to have noted that even on merits the petitioner as the defendant is only called upon under Order 37 Rule 3(5) CPC to show or disclose some facts which are triable in nature and he is not even required at that stage to establish those facts. Defending a suit is a valuable right available to a defendant, which cannot be denied or brushed aside in a casual manner. That is why the language of Order 37 Rule 3 (5) of CPC only contemplates that the defendant "may disclose such facts as may be deemed sufficient entitle him to defend". Therefore, whether the facts are true in nature and based on those facts whether the defendant is entitled to succeed in the suit is purely a matter for trial, which could be possibly gone into only when the defendant is granted leave to defend such suit. Therefore, the application filed under Order 37 Rule 3(5) seeking for grant of leave should be considered by the courts only by keeping it in mind that a defence, which is a valuable right cannot be taken away in a lighter and casual approach, simply because the suit is filed under Order 37 Rule 1 CPC. It is also to be noted, at this juncture, that if no such leave is granted, he is thrown out at the threshold and made to suffer a decree forthwith. Therefore, the courts must show utmost care and caution while considering the application under Order 37 Rule 3(5) and see as to whether the facts disclosed would lead to a valuable defence with triable issues and of course, such defence is not frivolous and vexatious." 16. Therefore, the courts must show utmost care and caution while considering the application under Order 37 Rule 3(5) and see as to whether the facts disclosed would lead to a valuable defence with triable issues and of course, such defence is not frivolous and vexatious." 16. Thus, when the petitioner has put forth certain material particulars and details in his affidavit indicating there are triable issues between the parties, I find that the order of the Court below in rejecting the application on the ground that the petitioner has not replied to the notice is not a justifiable one. In fact, the court below has failed to note the averments made in para 3 of the affidavit of the petitioner wherein she has also referred to a notice dated 17.3.2007 issued by her to the plaintiff claiming that 747 sq. ft. of constructed area was not delivered to her and there are defects in the construction. It is further contended that the said notice also was not replied by the plaintiff. Thus, both the sides have raised some issues which have to be necessarily gone into by conducting a regular trial, which can be done only after permitting the petitioner to defend the suit. Since such permission was denied, the present Civil Revision Petition filed before this Court challenging the said order deserves to be allowed. 17. It is seen from the order passed by the Court below that the Court below has only rejected the application filed under Order 37 Rule 3(5) of CPC and there is no indication as to whether the suit itself was decreed immediately consequent upon the dismissal of the said application. At any event, it is settled law that once the rejection order passed under Order 37 Rule 3(5) is set aside in the Revision, then the decree passed in the suit shall not stand automatically set aside and it is for the defendant to approach the Civil Court under Order 37 Rule 4 CPC to re-open the decree. To this effect, it is useful to refer to the judgment of the learned Judge reported in 2013 (3) CTC 305 (Shivsu Canadian Clear International Limited Vs. To this effect, it is useful to refer to the judgment of the learned Judge reported in 2013 (3) CTC 305 (Shivsu Canadian Clear International Limited Vs. Freightcan Global Logistics Private Limited) wherein it has been held that the defendant has to approach the trial Court under Order 37 Rule 4 of CPC to reopen the decree once the Civil Revision is allowed by this Court. 18. Similarly, I have also considered the said issue in my earlier decision reported in G.Rajarajan Vs. AIG Consumer Financial Services (India) Ltd. ( 2012 (4) L.W. 155 ) and found that a decree passed by the Court below in pursuant to the rejection of the application under Order 37 Rule 3(5) does not get automatically set aside , unless and until the same is challenged and set aside in the manner known to law. Therefore, if any consequential decree is passed in this case by the Court below, the petitioner is at liberty to make an application under Order 37 Rule 4 CPC before the trial Court seeking for setting aside the decree in view of the order passed in this Civil Revision Petition. 19. Though the learned counsel for the respondent submitted that the petitioner may be directed to deposit 50% of the claim made in the suit, I am not inclined to pass any such order in view of the disputed facts between the parties. However, since the suit is of the year 2008 and once the suit is restored in pursuant to an application under Order 37 Rule 4 CPC, as stated supra, at the instance of the petitioner herein, the trial Court shall dispose of the main suit within a period of three months from the date of such restoration or reopening of the suit. 20. With these observations, the Civil Revision Petition is allowed and the order passed by the Court below is set aside. Consequently the connected M.P. is closed. No costs.