BHAGAVATHI ENTERPRISES Vs. KIRLOSKAR ELECTRIC CO LTD

JUDGEMENT

(1.) Heard the learned counsel on record. Sri V.Hariharan, learned counsel representing the revision petitioners had drawn the attention of this court, the specific observation made by the learned II Additional Senior Civil Judge, City Civil Court, Hyderabad, to the effect that the said court is of the view that the defence of the petitioner to some extent is genuine and bona fide and gives raise to triable issues and had pointed out that having observed so, the learned Judge had not exercised the discretion judicially by granting only conditional leave to defend the above suit by filing written statement on deposit of Rs.2,00,000/- on or before 22.08.2003, in stead of granting un-conditional leave.

(2.) The learned counsel also had drawn the attention of this court in paras 3 to 8 of the affidavit filed in support of the application in I.A.No.1185 of 2003 in O.S.No.1408 of 2003 in general and para 9 of the said affidavit in particular and submitted that when the very maintainability of the suit under order 37 of C.P.C. is raised as a ground of attack, apart from the question of limitation and several other triable issues, the learned Judge having been satisfied that such issues are triable issues, should have granted un-conditional leave, instead of granting conditional leave on deposit of an amount of Rs.2,00,000/-. The learned counsel had drawn the attention of this court to the relevant provisions of C.P.C. in this regard and the guidelines specified by the Apex Court while exercising the discretion either to grant leave or to refuse the leave or to grant conditional leave.

(3.) The learned counsel representing the respondent had taken a stand that this is just a discretionary order made by the learned Judge and specific reasons had been recorded in paragraphs 5 and 6 of the order and prima facie, the learned Judge was of the opinion that the defence of limitation is illusory in the light of the peculiar facts and circumstances and consequently granted conditional leave to defend the suit in stead of granting un-conditional leave.The learned counsel also submitted that in view of the fact that the discretion was exercised judiciously, the impugned order need not be disturbed in any way by this court, while exercising the powers under Article 227 of the Constitution of India. Heard the learned counsel and perused the affidavit filed in support of the application before the II Additional Senior Civil Judge, City Civil Court, Hyderabad in I.A.No.1185 of 2001 in O.S.No.1408 of 2002, the counter filed therein and also the reasons recorded in the impugned order.