PATEL BALDEVBHAI RAMJIBHAI Vs. PATEL VISHNUBHAI HARVODANDAS

JUDGEMENT

(1.) ADMIT . Mr Nirzar Desai, learned advocate waives service of notice of admission on behalf of the respondent. With the consent of the parties, the matter is taken up for final disposal today.

(2.) BY filing this appeal from order the appellant who is the original defendant in Summary Suit No.447 of 2007 has challenged the order passed by the learned trial Judge dated 21.11.2006 passed in Civil Misc. Application No.250 of 2006 by which the learned trial Judge has set aside the ex -parte decree passed and restored the suit by directing the defendant to pay Rs.25,000/ - to the plaintiff within one month from the date of the order and the learned Judge also further directed that the defendant shall not withdraw the provident fund amount or gratuity amount as he is in government service, which is under challenge in this appeal from order.

(3.) THE respondent original plaintiff herein has instituted the suit for recovery of Rs.3,57,000/ - with interest from the appellant original defendant. According to the plaintiff, the defendant had given two cheques for settling the account, but on presentation, the said cheques have been bounced for which the plaintiff has already taken the proceedings under Section 138 of the Negotiable Instruments Act. The said suit is resisted by the appellant original defendant. It is the case of the defendant that the said cheques were never signed by him and were not drawn from his account and that he has never signed those cheques. In the aforesaid suit, the original plaintiff submitted an application at Exhibit 8 for summons for judgment as said suit is a summary suit. Since the advocate of the defendant could not remain present on the relevant date, the learned trial Judge passed an ex -parte order on 31.8.2004 allowing the said application Exhibit 8 and the defendant was granted leave to defend the suit on depositing principal amount of Rs.3,57,000/ -. Since according to the defendant he was not aware about the said order, the amount could not be deposited within stipulated time. On 24.7.2006 i.e. the day on which the main matter was listed, the advocate for the defendant requested the Court to give some time as his client had taken away the brief from him (i.e., the present appellant) and that he wanted to retire from the matter. The learned trial Judge has not passed decree on the same. The learned trial Judge thereafter passed ex -parte decree on 24.7.2006. The appellant herein thereafter preferred an application for setting aside the said ex -parte decree and to restore the suit to file as the advocate for the defendant could not argue the matter on merits and that he has good prima facie case to defend the case. The learned trial Judge by the impugned order disposed of the said application being Civil Miscellaneous Application No.250 of 2006, which was filed for setting aside the ex -parte decree. The learned trial Judge has restored the suit being Summary Suit No.447 of 2001 by setting aside the ex -parte decree. However, the learned trial Judge imposed the condition to the effect that the original defendant should pay Rs.25,000/ - within one month from the date of the order and that he should not withdraw his provident fund amount or gratuity amount which is payable to him by the Government as he is a Government servant. However, no such prayer was made by the plaintiff nor the learned advocate, Mr Desai is in a position to point out that any such prayer was made by the plaintiff by which the defendant was sought to be restrained from withdrawing the provident fund or gratuity.