SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5330 OF 2008 Shri Manoj Singh ...Petitioner Versus Mrs.Anita H.Bhandari ...Respondent ...... Mr.R.D.Soni i/b M/s.Ram & Co. for Petitioner. Mr.T.D.Deshmukh for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 9, 2008. SEPTEMBER 9, 2008. SEPTEMBER 9, 2008. P.C. P.C. P.C. 1. Preliminary objection regarding maintainability of this Petition has been raised by the Counsel for the Respondent. To buttress the argument, learned Counsel has relied on the decision of the Apex Court in the case of Ajay Ajay Ajay Bansal vs. Anup Mehta & Ors. reported in (2007) 2 Bansal vs. Anup Mehta & Ors. reported in (2007) 2 Bansal vs. Anup Mehta & Ors. reported in (2007) 2 SCC 275. SCC 275. SCC 275. The argument clearly overlooks that the dictum in the said decision is in the context of fact situation of that case. In that case, the : 2 : Trial Court had clearly opined that the Plaintiff is entitled to have the Judgment signed. In the present case, no such peremptory order has been passed by the Trial Court. The Trial Court has merely opined that on failure to deposit the amount specified in the order within three months the order granting leave to defend to the Petitioner shall stand automatically revoked. That, by itself, does not result in pronouncing Judgment which alone would be translated into a decree to be executed against the Petitioner. Thus understood, there is no merit in the preliminary objection that the order impugned in this Writ Petition is amenable to appeal under Section 96 of Code of Civil Procedure. 2. Heard Counsel for the parties. 3. Rule. Rule made returnable forthwith, by consent. Mr.Deshmukh waives notice for Respondent. 4. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 3 : 5. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the 11th Joint Civil Judge, Senior Division, Pune dated 5th April 2008 below Exhibit 23 in Special Summary No.178 of 2006. By the impugned decision, the Trial Court has granted conditional leave to defend to the Petitioner. The order reads thus: "O r d e r 1) Application is allowed subject to condition of depositing an amount of Rs.10,00,000/- (Ten lacs) in this proceeding within a period of three months, failing in which order granting liberty to defend shall stand automatically revoked. 2) Defendant is further directed to furnish on record written statement within the aforesaid period. 3) In the event of compliance of the order Asstt.Superintendent would invest the said amount in a fixed deposit in any Nationalised bank for a period of one year." 6. The grievance of the Petitioner is that although the Petitioner had relied upon several communications spread over between December 2006 till February 2007 which were appended to the reply : 4 : affidavit filed in support of prayer for grant of unconditional leave to defend which are also placed on record in this Writ Petition on pages 60 to pages 100, none of these documents or the efficacy of the communication has been considered by the Trial Court. On the other hand, in Paragraph 8 of the impugned Judgment, the Trial Court proceeds on the assumption that the Petitioner had never raised the plea of quality of goods supplied but that bogie has been raised for the first time in the present Suit. 7. After having considered the rival submissions, I am in agreement with the grievance made by the Petitioner that the basis on which the Trial Court has proceeded to answer the issue is manifestly wrong. It would be a different matter if the Trial Court were to advert to the communication exchanged between the parties during the relevant period and take the view that the stand taken on behalf of the Petitioner in the said communication was unstatable or unacceptable. That is not what has happened in the present matter. On the other hand, the Trial Court proceeded on the : 5 : erroneous assumption that no grievance about quality of goods was ever made by the Petitioner at any time but has been made for the first time in the present Suit. That assumption is manifestly wrong and error on the face of the record. For that reason, the said finding recorded by the Trial Court cannot stand the test of judicial scrutiny. As that has been the basis for ultimate order passed by the Trial Court, the appropriate course is to set-aside the impugned Judgment and Order and relegate the parties once again before the Trial Court for reconsideration of Application Exhibit 23 on its own merits in accordance with law. 8. All questions in that behalf will have to be considered by the Trial Court uninfluenced by the observations made in the impugned Judgment or for that matter, the present order. 9. Accordingly, this Petition succeeds. The impugned judgment is set aside instead Application Exhibit 23 is restored to the file of the Trial Court to be proceeded in accordance with law. All questions in that behalf are left open. The : 6 : parties shall appear before the Trial Court on 16th September 2008 on which date Trial Court may proceed with the hearing or give some other convenient date for hearing, while ensuring that the Application is finally disposed of not later than 17th November 2008. A.M.KHANWILKAR, J.