HEMANT Vs. RAWASSA CONSTRUCTION AND ORS.

JUDGEMENT

(1.) Rule returnable forthwith. Heard finally with the consent of Mr.A.S.Agrawal, learned Counsel for the Applicant and Mrs.Rajeshree Dewani, learned Counsel for the Respondents.

(2.) The appellants herein (original plaintiffs) instituted Summary Civil Suit No.108 of 2011 in the Court of 5th Joint Civil Judge (S.D.), Nagpur. Power of the said Court to entertain Summary Suits under Order 37 of the Code of Civil Procedure is not in dispute. The revision applicants have to challenge legality, propriety and correctness of the order dt.25.9.2014 below Exh.29 in the said Summary Civil Suit No.108 of 2011. The applicants have grievance that the provisions of Order 37 of the Code of Civil Procedure were not properly followed by the Court below in a suit for recovery of substantive sum of money. After the applicants filed Summary Civil Suit, the respondents delayed in filing their appearance and sought condonation of delay in filing appearance. The Court below by order dt.6.8.2012 condoned the delay. While applications for issuance of summons for Judgment was also filed on 1.10.2012 and the respondents were served with that summons for Judgment on 10.10.2012. They filed an application for leave to defend on 24.10.2012. That application for leave to defend was replied by the applicants on 22.11.2012. In these facts and circumstances, the Court below condoned the delay as well as by the impugned order granted leave to defend the suit. This impugned order is challenged on the ground that it is based on conjectures and surmises and without recourse to the material on record alleging that there is material irregularity and that the error is apparent on the face of the record. Thus, revisional jurisdiction of this Court is invoked for to interfere with the impugned order.

(3.) According to the learned Counsel for the revision applicants, the settled principles in the ruling by three Judge Bench of Hon'ble Apex Court in the case of M/s.Mechalee Engineers and Manufacturers vs. M/s. Basic Equipment Corporation, 1976 4 SCC 687 ought to have been followed. The said ruling would indicate that the High Court cannot interfere with the exercise of discretion by the subordinate Court in granting unconditional leave under Order 37, Rule 3 of the Code of Civil Procedure to defend upon grounds which are prima facie reasonable. In para nos.8 and 9 of the said ruling principles were summarised as reproduced from the earlier ruling, which are mentioned as below :