SCA/2051/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2051 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JAYANTILAL JAGJIVANBHAI SANGHVI - Petitioner(s) Versus AMIT SWARUPCHAND BORDIA - Respondent(s) ========================================================= Appearance : MR ASHUTOSH R BHATT for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 25/08/2008 ORAL JUDGMENT 1. Rule. Shri Poonam Gadhvi, wavies service of notice of admission on behalf of the respondent. With the consent of the parties, the matter is taken up for final hearing today. SCA/2051/2008 2/4 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioner-original defendant has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 13.12.2007 passed by the learned Chamber Judge, Court No. 5, City Civil Court, Ahmedabad below Exh. 19 in Summary Suit No. 113 of 2004, by which the learned City Civil Court has granted conditional leave to the petitioner to defend the suit on deposit of Rs. 1 lacs. 3. It appears that the suit has been filed for recovery of Rs. 7,22,110/- and summons for judgment was taken by the plaintiff and the defendant submitted application for leave to defend by submitting that suit is barred by limitation and number of contentions / triable issues were raised by the petitioner-defendant. The learned City Civil Court granted leave to defend to the petitioner on condition to deposit Rs. 1 lacs. 4. Shri A.R. Bhatt, learned advocate for the petitioner has submitted that in the facts and circumstances of the case, more particularly, when there are number of triable issues raised by the petitioner inclusive of suit being barred by limitation, the learned City Civil Court ought to have granted conditional leave to defend to the petitioner to defend the aforesaid suit. SCA/2051/2008 3/4 JUDGMENT 5. Shri Poonam Gadhvi, learned advocate for the respondent-original plaintiff has submitted that when the learned City Civil Court has exercised the discretion granting conditional leave to defend to the petitioner to defend the suit on condition to deposit of Rs. 1 lacs only against the claim of Rs. 7,22,110/-, the same is not required to be interfered in exercise of powers under Article 227 of the Constitution of India. 6.Having heard the learned advocate for the respective parties and considering the application for leave to defend and the impugned order, it appears to the Court that there are number of triable issues raised by the petitioner including the suit being barred by limitation. Considering the decision of the Hon'ble Apex Court in the case of M/s. Mechalec Engineers & Manufactures Vs. Basic Equipment Corporation reported in AIR 1977 SC 577 the learned City Civil Court ought to have granted unconditional leave to defend to the petitioner to defend the suit. Under the circumstances, the impugned order passed by the learned City Civil Court by which the trial Court has directed the petitioner to deposit of Rs. 1 lacs while granting the conditional leave to defend is requires to be quashed and set aside. 7. For the reasons stated above, petition succeed, impugned order passed by the learned Chamber Judge, City Civil Court, Ahmedabad dated 13.12.2007 passed SCA/2051/2008 4/4 JUDGMENT below Exh. 19 in Summary Suit No. 113 of 2004, by which the petitioner is directed to deposit Rs. 1 lac while granting the conditional leave to defend is hereby quashed and set aside and the petitioner is granted unconditional leave to defend the aforesaid Summary Suit No. 113 of 2004. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to cost. (M.R. Shah, J) Kaushik