V K K NAIR Vs. D SHITTAL KUMAR

JUDGEMENT

(1.) THE above Civil Revision Petition is directed against the fair and decretal order dated 31.7.2002 made in I.A.No.6778 of 2002 in O.S.No.6037 of 2001 by the Court of VIII Assistant Judge, City Civil Court, Chennai.

(2.) TRACING the history of the above Civil Revision Petition, what comes to be known is that the respondent herein has filed the above suit in O.S.No.6037 of 2001 for recovery of a sum of Rs.37,500/= together with interest at the rate of 30% p.a. and for costs; that the petitioner herein, who is the second defendant in the above suit, has filed an Interlocutory Application in I.A.No.6778 of 2002 under Order 37 Rule 3(5) C.P.C seeking leave to defend the suit; that the lower Court has dismissed the above application on 31.7.2002 on the ground that the petitioner/defendant has not raised any triable issue in the suit. It is only testifying the validity of the said fair and decretal order, the petitioner/defendant has come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of revision.

(3.) IN consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, so far as the first judgment rendered by the learned single Judge of this Court, cited No.(1) above is concerned, generally it is averred that 'disputes can be raised only on framing proper issues and taking evidence'. This is common in all other matters wherein generally trial is the answer. But, so far as Order 37 Rule 3(5) CPC is concerned, the position of law is different wherein unless the defendant is in a position to show that he has got triable issues in such money suits and applies on such summons for leave to defend such suit, he would not be permitted to defend the suit and unless the defendant is in a position to satisfy the Court that he has a substantial defence to raise or that the defence intended to be put up is raised, it is not incumbent on the part of the Court to grant leave. IN such event, even if an attempt is made on the part of the defendant to show the substantial defence and if the same is frivolous or vexatious, no leave could be granted, as per proviso No.1 to the above Section. According to Proviso No.(2) of the same Section, 'where a part of the amount claimed by the plaintiff is admitted by the defendant to be due for him, leave to defend the suit shall not be granted unless the admitted amount is deposited by the defendant in the Court'.