IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2717 OF 2006 FIRST APPEAL NO.2717 OF 2006 FIRST APPEAL NO.2717 OF 2006 Ashok Madhav Phadnis & Anr. ...Appellants Ashok Madhav Phadnis & Anr. ...Appellants Ashok Madhav Phadnis & Anr. ...Appellants Vs. Vs. Vs. Walchand Nagar Co-op. Bank Ltd. ...Respondents Walchand Nagar Co-op. Bank Ltd. ...Respondents Walchand Nagar Co-op. Bank Ltd. ...Respondents Mr.Uday Warunjikar, Advocate for Appellants Mr.Uday Warunjikar, Advocate for Appellants Mr.Uday Warunjikar, Advocate for Appellants Mr.U.R.Mate, Advocate for Respondents Mr.U.R.Mate, Advocate for Respondents Mr.U.R.Mate, Advocate for Respondents CORAM: SHRI D.G. DESHPANDE & CORAM: SHRI D.G. DESHPANDE & CORAM: SHRI D.G. DESHPANDE & SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. DATE : 4TH DECEMBER, 2006. DATE : 4TH DECEMBER, 2006. DATE : 4TH DECEMBER, 2006. P.C. P.C. P.C. 1. Heard Advocate for the Appellant and Respondent. 1. Heard Advocate for the Appellant and Respondent. 1. Heard Advocate for the Appellant and Respondent. Rule. Rule made returnable forth with. Rule. Rule made returnable forth with. Rule. Rule made returnable forth with. 2. We heard both the Advocates. The Appellant has 2. We heard both the Advocates. The Appellant has 2. We heard both the Advocates. The Appellant has challenged the judgment and decree dated 31st August, 2005 challenged the judgment and decree dated 31st August, 2005 challenged the judgment and decree dated 31st August, 2005 passed by Civil Judge, Senior Division, Baramati in passed by Civil Judge, Senior Division, Baramati in passed by Civil Judge, Senior Division, Baramati in Special Summary Suit No.3 of 2000. Special Summary Suit No.3 of 2000. Special Summary Suit No.3 of 2000. 3. The main contention of the Appellant is that on 3. The main contention of the Appellant is that on 3. The main contention of the Appellant is that on 24th July, 2001 he had filed an application for leave to 24th July, 2001 he had filed an application for leave to 24th July, 2001 he had filed an application for leave to defend under Order 37 Rule 5 of the C.P.C. and following defend under Order 37 Rule 5 of the C.P.C. and following defend under Order 37 Rule 5 of the C.P.C. and following orders have been passed on that application: orders have been passed on that application: orders have been passed on that application: . " Both party and their Advocate absent . " Both party and their Advocate absent . " Both party and their Advocate absent when called on, on 9.10.2001. Court heard when called on, on 9.10.2001. Court heard when called on, on 9.10.2001. Court heard argument of Plaintiff side and as per oral request argument of Plaintiff side and as per oral request argument of Plaintiff side and as per oral request of Defendant’s Advocate matter adjourned but till of Defendant’s Advocate matter adjourned but till of Defendant’s Advocate matter adjourned but till today Advocate for Defendant not argued. today Advocate for Defendant not argued. today Advocate for Defendant not argued. . Therefore Advocate for the Defendant is . Therefore Advocate for the Defendant is . Therefore Advocate for the Defendant is hereby directed to argue on next date failing hereby directed to argue on next date failing hereby directed to argue on next date failing which necessary order will be passed. which necessary order will be passed. which necessary order will be passed. Sd/- Sd/- Sd/- Civil Judge S.D. Baramati Civil Judge S.D. Baramati Civil Judge S.D. Baramati Dated: 28.1.2003 Dated: 28.1.2003 Dated: 28.1.2003 . Advocate for the Defendant failed to . Advocate for the Defendant failed to . Advocate for the Defendant failed to comply above said order dated 28.1.2003. Hence, comply above said order dated 28.1.2003. Hence, comply above said order dated 28.1.2003. Hence, it be fixed for further order. it be fixed for further order. it be fixed for further order. Sd/- Sd/- Sd/- Civil Judge S.D., Baramati Civil Judge S.D., Baramati Civil Judge S.D., Baramati Dated: 21.3.2003. Dated: 21.3.2003. Dated: 21.3.2003. . Application is granted. . Application is granted. . Application is granted. Sd/- Sd/- Sd/- Civil Judge S.D.,Baramati Civil Judge S.D.,Baramati Civil Judge S.D.,Baramati Dated: 10.6.2003." Dated: 10.6.2003." Dated: 10.6.2003." 4. It is from the aforesaid orders that neither the 4. It is from the aforesaid orders that neither the 4. It is from the aforesaid orders that neither the prayer made by the Appellant to grant him leave to defend prayer made by the Appellant to grant him leave to defend prayer made by the Appellant to grant him leave to defend is granted, nor is it rejected. These orders cannot be is granted, nor is it rejected. These orders cannot be is granted, nor is it rejected. These orders cannot be interpreted as orders granting leave either conditional or interpreted as orders granting leave either conditional or interpreted as orders granting leave either conditional or unconditional and therefore, the contention of the Counsel unconditional and therefore, the contention of the Counsel unconditional and therefore, the contention of the Counsel for the Appellant has to be accepted that the consequent for the Appellant has to be accepted that the consequent for the Appellant has to be accepted that the consequent decree is liable to be set aside. decree is liable to be set aside. decree is liable to be set aside. 5. The learned Counsel for the Respondent initially 5. The learned Counsel for the Respondent initially 5. The learned Counsel for the Respondent initially tried to contend that the decree came to be passed after tried to contend that the decree came to be passed after tried to contend that the decree came to be passed after hearing both the sides because the written statement was hearing both the sides because the written statement was hearing both the sides because the written statement was not filed. However, perusal of the impugned judgment not filed. However, perusal of the impugned judgment not filed. However, perusal of the impugned judgment shows that the suit was kept for hearing, no evidence was shows that the suit was kept for hearing, no evidence was shows that the suit was kept for hearing, no evidence was recorded thereafter. recorded thereafter. recorded thereafter. 6. In such a situation if the Appeal is admitted we 6. In such a situation if the Appeal is admitted we 6. In such a situation if the Appeal is admitted we will have to grant stay that will result in prolonging the will have to grant stay that will result in prolonging the will have to grant stay that will result in prolonging the original litigation. When we explained them this aspect, original litigation. When we explained them this aspect, original litigation. When we explained them this aspect, the learned Counsel for the Respondent contended that the the learned Counsel for the Respondent contended that the the learned Counsel for the Respondent contended that the Court may in that case pass appropriate order. Court may in that case pass appropriate order. Court may in that case pass appropriate order. 7. We therefore, set aside the impugned judgment and 7. We therefore, set aside the impugned judgment and 7. We therefore, set aside the impugned judgment and decree and remand the matter to the trial Court to decide decree and remand the matter to the trial Court to decide decree and remand the matter to the trial Court to decide the application of the Appellant for leave to defend the the application of the Appellant for leave to defend the the application of the Appellant for leave to defend the application dated 24th July, 2001 on its own merits. application dated 24th July, 2001 on its own merits. application dated 24th July, 2001 on its own merits. 8. The parties to appear before the Civil Judge S.D. 8. The parties to appear before the Civil Judge S.D. 8. The parties to appear before the Civil Judge S.D. Baramati on 18th December, 2006 at 11.00 a.m. with the Baramati on 18th December, 2006 at 11.00 a.m. with the Baramati on 18th December, 2006 at 11.00 a.m. with the copy of this order and the Court shall decide the copy of this order and the Court shall decide the copy of this order and the Court shall decide the application under Order 37 Rule 5 of Code of Civil application under Order 37 Rule 5 of Code of Civil application under Order 37 Rule 5 of Code of Civil Procedure within four weeks therefrom. Procedure within four weeks therefrom. Procedure within four weeks therefrom. 9. Both the parties to give co-operation to the Court 9. Both the parties to give co-operation to the Court 9. Both the parties to give co-operation to the Court in that regard. in that regard. in that regard. 10. The Appeal is disposed of accordingly. R & P be 10. The Appeal is disposed of accordingly. R & P be 10. The Appeal is disposed of accordingly. R & P be sent back to the lower Court immediately. sent back to the lower Court immediately. sent back to the lower Court immediately. (SMT. ROSHAN DALVI, J.) (SHRI D.G. DESHPANDE, J.) (SMT. ROSHAN DALVI, J.) (SHRI D.G. DESHPANDE, J.) (SMT. ROSHAN DALVI, J.) (SHRI D.G. DESHPANDE, J.)