JUDGMENT : 1. By way of present petition, under Article 226 read with Article 227 of the Constitution of India, the petitioner has challenged order dated 27.1.2016 passed below Exh. 13 application in Special Summary Suit No. 6 of 2012 by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur, whereby the Trial Court has granted unconditional leave to defend application filed by the respondent - original defendant. 2. The case of the petitioner is that the petitioner has entered into business transaction with the respondent-original defendant, as the petitioner is engaging in the business of different kind of Teleservices testing and measurement on rental basis to different information Techno Savvy companies at different places including Gujarat and across India. The petitioner has supplied certain goods to the original defendant - respondent, in response to the work order placed by the original defendant - respondent herein and for that number of invoices amounting to Rs.1,05,60,410/-, were issued and at the end, the debt balance was Rs.47,07,704/-. For the said supply of goods, the plaintiff has raised the demand of dues and the defendant has failed to pay the due amount and therefore, the plaintiff issued legal notice to the respondent original defendant on 15.9.2011. In response thereto the original defendant has paid an amount of Rs.13,30,597/- on 16.11.2011 and lastly after deduction of Rs.13,30,597/- towards the credit, TDS and other deductions, Rs.33,77,107/- was due amount. 2.1 Thereafter, the respondent - original defendant has not paid any amount and therefore, the plaintiff has filed Special Summary Suit in the Court of learned Senior Civil Judge, Ahmedabad (Rural) and demanded Rs.33,77,107/- which is remained due and payable to the plaintiff against the supply of goods. In the said suit, summon was issued to the respondent-original defendant and the same was served upon the respondent-original defendant. In response thereto, the respondent-original defendant has filed written statement below Exh.13 and prayed leave to defend. After considering the submission made on behalf of the concerned parties, Trial Court has passed order which is impugned in present petition. Paragraph No.6 of the said order passed below Exh.13 in Special Summary Suit No.6 of 2012 reads as under:- "6. While going through the merits of the case, it resembles that triable issues raised by the Defendant are to be decided in the light of the evidence. Without leading evidence, they are not to be resolved. Paragraph No.6 of the said order passed below Exh.13 in Special Summary Suit No.6 of 2012 reads as under:- "6. While going through the merits of the case, it resembles that triable issues raised by the Defendant are to be decided in the light of the evidence. Without leading evidence, they are not to be resolved. Under the circumstances, if unconditional leave to defense is granted then it will be more reasonable and judicious for which I pass the following order as under; -:ORDER:- (1) Application of Defendant for unconditional leave to defense vide Exh.13 is hereby allowed. (2) This suit be registered as Special Civil Suit and be proceeded accordingly." 3. Feeling aggrieved and dissatisfied with the impugned order, the original plaintiff-petitioner herein has preferred this petition, on the ground that the Trial Court has without assigning any justifiable reasons and submissions passed non-speaking order, whereby unconditional leave to defend was granted in favour of the defendant. 4. In present petition, the co-ordinate bench of this Court has issued notice to the respondent on 21.3.2016. Though, notice was served upon the respondent, the respondent has chosen not to remain present before the Court and therefore, the co-ordinate bench of this Court had issued rule on 1.12.2016 and granted interim relief in terms of paragraph No. 7(c). The said paragraph No.7(c) reads as under:- "7(c) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay implementation, operation and execution of the order dated 27.1.2016 passed below Exh. 13 application in Special Summary Suit No.6 of 2012 by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur." 5. Now, after almost eight years, the petition came up for final hearing. Today, also respondent is not personally present nor made any arrangement by engaging lower to defend present petition and also not filed any affidavit-inreply to the petition and therefore, the Court has no other option but to hear the matter on merits. 6. Mr. Bhadrish Raju, learned Counsel for the petitioner has submitted that the Trial Court has not even considered the fact that the goods were supplied from Ahmedabad and invoices were also raised from Ahmedabad and in the invoices, in clause 4, it was specifically mentioned that all the disputes are subject to the jurisdiction of Ahmedabad Courts only and that invoices were on record. He has further submitted that the said fact was not properly appreciated and considered by the Trial Court and without considering any submission advanced by the original plaintiff, learned Trial Judge has passed impugned order. He has further submitted that the findings recorded in paragraph No. 6 is absolutely non-speaking in nature and therefore, it is erroneous, unjust, against the settled principles of law and against the provision of the Civil Procedure Code and therefore, the petition may be allowed. 6.1 Mr. Bhadrish Raju, learned Counsel has relied upon the the judgment of the Hon'ble Apex Court in case of Southern Sales and Services and others vs. Sauermilch Design and Handels GMBH reported in (2008) 14 SCC 457 and more particularly paragraph No. 9 of the said judgment, which reads as under:- 9. On behalf of the appellant-defendant it was urged that the consistent view taken by this Court in relation to summary trials under Order 37 of the Code is that when a Court is satisfied that a triable issue has been raised in defence of the claim made on behalf of the plaintiff, unconditional leave has to be granted to the defendant to contest the suit and no direction could be given while granting such leave to the defendant to deposit any amount by way of security. Mr. T.V. Ratnam, learned advocate, who appeared for the appellant-defendant submitted that this view had been taken by the Calcutta High Court as far back as in 1949 in the case of Kiranmoyee Dassi vs. Dr. J. Chatterjee, and was subsequently reiterated and followed by this Court in the case of Santosh Kumar Vs. Bhai Mool Singh, in which this Court set aside the order of the High Court upon holding that the imposition of a condition while granting leave to defend a suit in which a triable issue has been raised was illegal. If the Court was satisfied that there was a genuine triable issue, leave had to be given and given unconditionally to defend the suit." 6.2 Mr. Bhadrish Raju, learned Counsel for the petitioner has submitted that if the defendant has raised any plea with regard to triable issue then and in that circumstance only the Court can grant leave to defend conditionally or unconditionally and that discretion is cast upon in favour of the Court. Bhadrish Raju, learned Counsel for the petitioner has submitted that if the defendant has raised any plea with regard to triable issue then and in that circumstance only the Court can grant leave to defend conditionally or unconditionally and that discretion is cast upon in favour of the Court. He further submitted that it is true that herein present case, the Trial Court has not considered that whether the defence of the defendant with regard to the triable issue is there or not and merely recorded the findings in paragraph No. 6 and granted unconditional leave to defend, which is against the settled legal principles of law. 6.3 Mr. Bhadrish Raju, learned Counsel for the petitioner has also referred and relied upon the decision of this Court passed in Special Civil Application No. 7874 of 2014 dated 8.1.2016 and prayed that present petition may be allowed and the impugned order may be quashed and set aside. 7. I have heard Mr. Bhadrish Raju, learned Counsel for the petitioner and considered the submissions and relevant provision of law with regard to leave to defend. 7.1 Looking to the facts and circumstances of the case, it is appropriate to take into account Order-XXXVII Rule 3 Sub-clause 4 and 5 of the Civil Procedure Code, which reads as under:- "(4) if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (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 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." 8. From the aforesaid, it is evident that upon receipt of the summons, the defendant has to file his reply/counter claim/leave to defend, wherein he has to take specific plea with regard to triable issue, which is required to be tried by the Court, along with the documentary evidence and after considering the said, the Court can consider the application for leave to defend either conditional or unconditional and herein the present case, it seems that the Trial Court has not gone into the facts and without recording any findings on merits has passed merely a non-speaking order, which is bad in law, erroneous and the same deserve to be quashed and set aside. 9. It is quite evident that the Trial Court has not recorded any findings on any issue, so as to consider such issue is being triable issues raised by the defendant and to give the unconditional leave to defend the suit. 10. In nutshell, the impugned order is a non-speaking order and without any reasons, the Trial Court has granted unconditional leave to defend. 11. 10. In nutshell, the impugned order is a non-speaking order and without any reasons, the Trial Court has granted unconditional leave to defend. 11. At this stage, it is also relevant to have a glance to the recent judgment of this Court dated 5.6.2023 passed in Special Civil Application No. 7614 of 2023, wherein relying upon the decision of the Hon'ble Apex Court in case of B.L.Kashyap and Sons Limited V/s JMS Steels and Power Corporation and Another, reported in 2022(3) SCC 294 , this Court has observed in paragraph No. 13 as under:- 13. It is also relevant to consider the recent judgment in the case of B.L.Kashyap and Sons Limited V/s JMS Steels and Power Corporation and Another, reported in 2022(3) SCC 294 , more particularly, paragraphs 33.1, 33.2, 33.3 which read as under: “33.1 As noticed, if the defendant satisfies the Court that he has substantial defence i.e. a defence which is likely to succeed, he is entitled to unconditional leave to defend. In the second eventuality, where the defendant raises triable issues indicating a fair or bonafide or reasonable defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend. In the third eventuality, where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or about genuineness of the issues, the trial Court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other. Therefore, the trial may impose conditions both as to time or mode of trial as well as payment into the court or furnishing security. In the fourth eventuality, where the proposed defence appears to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest. 33.2 Thus, it could be seen that in the case of substantial defence, the defendant is entitled to unconditional leave; and even in the case of a triable issue on a far and reasonable defence, the defendant is ordinarily entitled to unconditional leave to defend. 33.2 Thus, it could be seen that in the case of substantial defence, the defendant is entitled to unconditional leave; and even in the case of a triable issue on a far and reasonable defence, the defendant is ordinarily entitled to unconditional leave to defend. In case of doubts about the intent of the defendant or genuineness of the triable issues as also the probability of defence, the leave could yet be granted but while imposing conditions as to the time of mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave. It is only in the case where the defendant is found to be having no substantial defence and/or raising no genuine triable issues coupled with the court’s view that the defendant is frivolous or vexatious that the leave to defend is to be refused and the plaintiff is entitled to judgment forthwith. Of course, in the case where any part of the amount claimed by the plaintiff is admitted by the defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the court. 33.3 Therefore, while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the rule or that the leave to defend is to be granted only in exceptional cases or only in cases where the defence would appear to be a meritorious one. Even in the case of raising of triable issues, with the defendant indicating his having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny the leave. It gets perforce reiterated that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the court finds the defence to be frivolous and vexatious.” 12. Under the circumstances and considering the provision of law and the judgment of the Hon'ble Apex Court and this Court, I am of the opinion that present petition requires consideration and the same deserves to be allowed. 13. Accordingly, present petition is hereby allowed. Rule is made absolute. The impugned order dated 27.1.2016 passed below Exh. 13 Application in Special Summary Suit No. 6 of 2012 by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur is hereby quashed and set aside with the direction to the Trial Court to hear afresh the Exh.13 Application, after giving proper opportunity to both the sides and after examining the merits and the documentary evidence on record and the defence raised by the defendant with regard to the issue involved is required to be tried by the Trial Court and there is a triable issue. The Trial Court shall decide Exh.13 Application after considering the provisions of Order XXXVII Rule 3 of the Civil Procedure Code, in light of the settled legal provision, in its true and proper spirit, as expeditiously as possible and preferably within period of three months from the date of receipt of copy of present order, in accordance with law and without being influenced by the observations made in present order. 14. It is expected that all the concerned including the plaintiff and respondent shall cooperate the concerned Trial Court and without seeking any unnecessary adjournments, they may proceed further to hear the application. 15. With aforesaid directions, present petition stands allowed. Rule is made absolute. No order as to cost. Direct service is permitted.