SCA/10919/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10919 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 ? ========================================================= THAKKAR VASANTLAL ATMARAM - Petitioner(s) Versus PATEL BABUBHAI VANARASHIBHAI - Respondent(s) ========================================================= Appearance : MR UTKARSH B JANI for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR MAHENDRA K PATEL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 19/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner original plaintiff has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 27.3.2008 passed by the SCA/10919/2008 2/5 JUDGMENT learned Principal Civil Judge, Harij passed below Exh. 11 in Summary Suit No. 2 of 2007, by which the learned trial Court has granted unconditional leave to the respondent original defendant to defend the aforesaid suit. 2. Shri Jani, learned advocate for the petitioner has submitted that as such there is no observation and / or finding given by the learned trial Court that there are serious triable issues and, therefore, the respondent- defendant is entitled to unconditional leave. It is submitted by him that after discussing the judgment cited at the Bar on behalf of the respective parties, straightway the operative order is passed granting unconditional leave to the defendant. It is also submitted by him as such there are no trial issues either, therefore, it is requested to allow the present Special Civil Application and quashed and set aside the impugned order and even direct the respondent defendant to deposit at least 50% of the claim amount. 3. Shri Patel, learned advocate for the respondent- defendant has tried to support the impugned order passed by the learned trial Court, however he is not in a position to show a single line and / or any observations by the learned trial Court that there are triable issues and, therefore, the respondent is entitled to SCA/10919/2008 3/5 JUDGMENT unconditional leave. 4. Having heard the learned advocates for the respective parties and even considering the impugned order passed by the learned trial Court granting unconditional leave to the respondent, it appears that the learned trial Court has not made any observation and / or discussion with respect to the defence raised by the respondent- defendant an has not stated anything whether there are any triable issues or not. On considering the impugned order, it appears that the learned Judge has discussed the judgment cited at the Bar on behalf of the rival parties and straightway the order is passed granting unconditional leave to the respondent-defendant without any further discussion and / or considering and / or narrating the defences raised by the respondent defendant. The learned trial Court ought to have appreciated that unless and until there are triable issue then and then only unconditional leave to defend can be granted. As held by the Hon'ble Supreme Court in the case of Defiance Knitting Industries (P) Ltd.Vs. Jay Arts reported in (2006) 8 SCC, 25 following things are required to be considered while considering the application for leave to defend in a summary suit under Order 37 Rule 5 of Code of Civil Procedure. While giving leave to defend the suit the Court shall observe the following principles. SCA/10919/2008 4/5 JUDGMENT (a)If the Court is of the opinion that the case raise a triable issue then leave to defend should ordinarily be granted unconditionally. The question whether the defence raises a triable issue or not has to be ascertained by the Court from the pleadings before it and the affidavits of parties. (b) If the court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexations it may refuse leave to defend altogether. (c) In cases where the court entertains a genuine doubt on the question as to whether the defence is genuine or sham or whether it raises a triable issue or not. The Court may impose conditions in granting leave to defend. 5. In view of the above, impugned order passed by the impugned order passed by the learned trial Court cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the learned trial Court for deciding the leave to defend application / summons for judgment afresh in accordance with law and on merits in light of the observations made hereinabove. 6. For the reasons stated above, petition succeeds. The impugned order dated 27.3.2008 passed by the learned Principal Civil Judge, Harij passed below Exh. 11 in Summary Suit No. 2 of 2007 is SCA/10919/2008 5/5 JUDGMENT hereby quashed and set aside and the matter is remanded to the learned trial Court for deciding the leave to defend application / summons for judgment afresh in accordance with law and on merits in light of the observations made hereinabove. The said exercise to be completed within a period of 4 weeks from the date of receipt of writ of this order. Rule is made absolute. There shall be no order as to costs. Direct service permitted. (M.R.SHAH,J.) kaushik