SARASWATIBEN LALLUBHAI PARIKH Vs. KANTILAL PURSHOTTAM PATEL

JUDGEMENT

(1.) The petitioners in this Civil Revision Application are original defendants and the opponent is the original plaintiff in Suit No. 1118 of 1963 which was filed by the plaintiff as a Summary Suit. After the Summary Suit was filed appearance was entered on behalf of the defendants and a summons for judgment was taken out by the plaintiff. On that summons for judgment the plaintiff put in his affidavit in support of the summons for judgment and the defendants applied for leave to defend and also put in their affidavit-in-reply setting out their version of the facts which led to the disputes between the parties. According to the plaintiff there was a cheque for Rs. 2000/drawn by the defendants in his favour and that cheque was not presented to the Bank because the defendants had asked that it should not be presented. In that affidavitin-reply the defendants contention was that the cheque was not given at all to the plaintiff but was drawn in the name of the plaintiff at the instance of a firm of Shroffs and money-lenders Pari Navnitlal Mangaldas and that the suit was filed because the disputes and differences had arisen between the defendants and the firm of Pari Navnitlal Mangaldas.

(2.) It is clear on a perusal of the affidavit-in-reply that a triable issue did arise on the averments set out in the affidavit-in-reply. To controvert these statements in the affidavit-in-reply of the defendants no affidavit-in-rejoinder was filed by the plaintiff and therefore the plaintiff must be deemed to have admitted the statements of fact set out in the affidavit-in-reply.

(3.) Inspite of this position the learned trial Judge in the City Civil Court made a conditional order for depositing Rs. 2000/within four weeks and granted conditional leave to defend and it is against that order that the present Civil Revision Application has been filed.