IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4978/2007 Shri.Dadasaheb B.Katyare and Anr. Petitioner Vs. Shri.Balkrishna Laxman Gole Respondents Mr.M.M.Sathaye Advocate for the petitioners Mr.Girish Agarwal for respondent Coram : A.M.Khanwilkar,J. Date : 9th July,2008 P.C. 1] Heard counsel for the parties. 2] Rule. Rule returnable forthwith by consent .Respondent waives the notice through counsel. As short question is involved the petition is taken up for final disposal,by consent. 3] The petitioner , who happens to be defendant no.1 in the suit filed by the respondent herein , has questioned the correctness of the decision of the Civil Judge,Senior Division ,Nasik dated 20-4- 2007 passed below Exh.16 in Summary Civil Suit no.36/2006 .By this decision , the Trial court has rejected the request of the petitioner/defendant no.1 to leave to defend the suit . That view has been taken on the findings that the petitioner has not denied the material facts such as he has not executed any document that he has not issued cheque of Rs.2,50,000/- , that he has not taken 2 financial assistance from the plaintiff , that he has made repayment of the amount to the plaintiff by way of cheque . If that fact recorded by the Trial Court is to be accepted as it is then no fault can be with found with the ultimate conclusion of rejecting the request of defendant no.1 to contest the suit unconditionally . However, on perusal of application for leave to defendant Exh.16 , in particular paragraph A1,A2 and C1 , it is noticed that the petitioner has clearly denied the material facts pleaded by the plaintiff . It is not necessary to elaborate on this point . Suffice it to observe that the trial Court has proceeded on erroneous basis that those facts remained undenied. As the basis is manifestly wrong and error apparent on the face of the record , the order passed below Exh.16 cannot stand the test of judicial scrutiny. The order passed below Exh.16 is ,therefore, set aside. The matter is remanded back to the Trial Court for fresh consideration of Exh.16 on its own merits in accordance with law. The Trial Court shall re-examine the case in the context of assertion in the application Exh.16 and may examine the rival case with regard to the point in issue and proceed to decide the matter afresh on all aspects. 4] The parties to appear before the Trial Court on 4th August, 2008 on which date the Trial Court may proceed with the hearing of Exh.16 keeping in mind the observations in this order or on such other date which is convenient to it and finally dispose of the application 3 not later than 30.8.2008 . Petition disposed off on the above terms . (A.M.Khanwilkar,J.)