IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/04/2002
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
C.R.P. (P.D.) No. 3195 of 2001
T.Rajmohan .. Petitioner
versus
C.Chockalingam .. Respondent
Revision against the order dated 21.8.2001 made in I.A.No.2304 of 20
01 in O.S.No.5354 of 2000 on the file of the learned I Assistant City Civil
Judge, Chennai.
!For petitioner : Mr.P.L.Narayanan
^For respondent : Mr.A.V.Munuswamy
:ORDER
Aggrieved by an order dated 21.8.2001 made in I.A.No.2304 of 2001 in
O.S.No.5354 of 2000 on the file of the learned I Assistant City Civil Judge,
Chennai, permitting the respondent/defendant to defend his case under Order 37
Rule 5, C.P.C., the plaintiff in O.S.No.5354 of 2 000, laid for recovery of
money to the tune of Rs.1,70,000/- along with interest at Rs.2.50 per Rs.100/-
per month, has filed the above revision.
2. Order 37 Rule 5 of the Code of Civil Procedure reads as follows:
Order 37 Rule 5, C.P.C.:
” (5) The defendant may, at any time within ten days from the service of such
summons for judgment, by affidavit or otherwise disclosing such facts as may
be deemed sufficient to entitle him to defend, apply on such summons for leave
to defend such suit, and leave to defend may be granted to him unconditionally
or upon such terms as may appear to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless 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 vexatious:
Provided further that, where a part of the amount claimed by the
plaintiff is admitted by the defendant to be due from him, leave to defend the
suit shall not be granted unless the amount so admitted to be due is deposited
by the defendant in Court.
3. The first proviso to Order 37 Rule 5 confers a right on
the defendant to seek leave to defend himself, and such right shall not be
refused unless 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 vexatious.
4. The first proviso, therefore, makes it clear that the
defendant who seeks a leave to defend himself under Order 37 Rule 5, C.P.C.,
should satisfy the Court that he has a substantial defence to raise and that
the defence is not frivolous or vexatious, in which event, the Court shall not
refuse the leave to defend. But the said proviso further imposes a bar in
granting such leave to the extent of amount claimed by the plaintiff, if
admitted by the defendant to be due from him.
5. If the averment of the respondent/defendant is tested in
the light of the provisions contained in Order 37 Rule 5, C.P.C., since the
revision petitioner/plaintiff himself has stated that there was due towards
hand loan of Rs.30,000/- availed by the respondent/defendant from the revision
petitioner/plaintiff, no leave can be granted to the respondent/defendant on
account of such claim of the revision petitioner/plaintiff. This aspect of
the case has not been dealt with by the learned I Assistant City Civil Judge,
Chennai, while granting leave by order dated 21.8.2001 made in I.A.No.2304 of
2001 in O.S.No.5354 of 2000. Hence, I am obliged to modify the order dated
21.8.2001 in I.A.No.2304 of 2001 in O.S.No.5354 of 2000 on the file of the
learned I Assistant City Civil Judge, Chennai, granting leave to the
respondent/defendant to defend his case in O.S.No.5354 of 2000, on condition
that the respondent/ defendant deposits a sum of Rs.30,000/- to the credit of
O.S.No.5354 of 20 00 within four weeks from the date of receipt of a copy of
this order, which shall be disbursed subject to the result of the suit, and
till then, the learned I Assistant City Civil Judge, Chennai, is directed to
deposit the said amount in fixed deposit in a nationalised bank for a minimum
period of one year, which shall be renewed from time to time during the
pendency of the suit.
The revision is ordered accordingly. No costs. Consequently,
C.M.P.No.16833 of 2001 is closed.
ksv
P.D.DINAKARAN,J
Index: Yes
Internet: Yes
05.04.2002
ksv
Sd/- Assistant Registrar
/True Copy/
Sub Assistant Registrar
To:
The Registrar, City Civil Court, Chennai.
C.R.P.(P.D.) No.3195 of 2001