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SCA/2051/2008 2/ 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.
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.
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 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
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