FARSURAM SUNDERDAS ACHARYA Vs. LALBHAI KASAMBHAI MANSURI

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India is filed by the petitioner, original plaintiff, challenging the order dated 8.12.2011 passed by the learned 4th Additional Senior Civil Judge, Gandhinagar, in Special Summary Suit No. 1 of 2011 under Order of the Code of Civil Procedure, 1908 (for short, 'the Code'], by which, the trial court has granted unconditional leave to the defendant to defend the suit. Learned counsel for the petitioner, original plaintiff, would contend that, as per the compromise purshis dated 23.2.2010, the amount due has been admitted by the defendant That, out of Rs. 16 lakhs, the defendant agreed to pay Rs. 14,80,000/ -, out of which, Rs. 2 lakhs were paid in cash; Rs. 2,80,000/ - were to be paid on or before 5.3.2010; and Rs. 10 lakhs were to be paid on or before 25.5.2010. Rs. 2 lakhs paid in cash were accepted by the plaintiff and a receipt was issued. It is, therefore, submitted that, unless the amount, as agreed and admitted to be due, is deposited no leave to defend the suit could have been granted in view of unnumbered second proviso to clause (5) of Rule of Order XXXVII of the Code. The said proviso reads as under: 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. It is, therefore, submitted that the trial court has committed an error in granting unconditional leave to defend.

(2.) WHILE the matter was heard earlier, the respondent, original defendant, was directed to pay Rs. 1 lakh to defend the suit and a statement is made by the learned counsel for the respondent that, in view of existing financial position, the respondent is unable to deposit more than Rs. 1 lakh.

(3.) HOWEVER , the learned counsel for the petitioner would reiterate that the mandatory provision contained in unnumbered second proviso to sub -rule (3) of Rule of Order 37 of the Code has been ignored by the trial court and, to the above extent, the order impugned is contrary to law and deserves to be quashed and set aside. Having heard the learned counsels appearing for the parties and on perusal of the record, it appears that the compromise was arrived at between the parties, but, at the same time, the defendant in the suit, while filing defence, has disputed the compromise including the interest part. Besides, the proviso in question would ordinarily embrace the main provision and, therefore, the trial court has to consider the case of the defendant as well whether there exists a triable issue and, if it is prima -facie made out, the trial court can certainly pass an order granting unconditional leave to the defendant. In view of the above, the submission made by the learned counsel for the petitioner is misconceived. In view of a dispute having been raised by the defendant about payment of interest and other dues in spite of compromise, no case is made out to entertain the present petition. Hence, this petition is rejected. Notice is discharged. There shall be no order as to costs.