Case Note & Summary
This Civil Revision Application was filed by the original respondent (defendant) against an order dated 23rd July 2009 passed by the learned Judge of the City Civil Court, Bombay, rejecting the defendant's application for leave to defend (Exhibit 14) in a summary suit filed by the plaintiff (trust and its trustees). The plaintiff had filed the suit for recovery of money based on a promissory note and a receipt. The defendant sought leave to defend, alleging that the promissory note was forged and that the trustees who executed it had no authority. The trial court rejected the application, holding that the defendant failed to disclose a triable issue or a bona fide defence. The High Court, in revision, examined the principles governing leave to defend under Order 37 CPC. It noted that the defendant's defence was vague, lacked particulars, and was contradictory. The court observed that the defendant did not produce any evidence to support the claim of forgery or lack of authority. The court held that the defendant must disclose a triable issue and a fair or reasonable probability of a bona fide defence. Since the defendant failed to do so, the trial court's order was justified. The High Court dismissed the revision application, confirming that the plaintiff was entitled to a decree as prayed.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Order 37 Rule 3(5) CPC - The defendant must disclose a triable issue and a fair or reasonable probability of a bona fide defence to obtain leave to defend. The court held that the defendant failed to raise any triable issue or disclose a bona fide defence, as the defence was vague and lacked particulars. (Paras 1-10) B) Civil Procedure - Summary Suit - Triable Issue - Order 37 CPC - A triable issue is one that is not frivolous or vexatious and requires investigation. The court found that the defendant's claim of forgery and lack of authority was not supported by any evidence or particulars, and thus did not constitute a triable issue. (Paras 5-10) C) Civil Procedure - Summary Suit - Bona Fide Defence - Order 37 CPC - A bona fide defence must be honest and genuine, not a mere sham or moonshine. The court held that the defendant's defence was not bona fide as it was contradictory and lacked credibility. (Paras 8-10)
Issue of Consideration
Whether the learned Judge of the City Civil Court, Bombay was justified in rejecting the application for leave to defend (Exhibit 14) in a summary suit under Order 37 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the Civil Revision Application, confirming the order of the City Civil Court rejecting the application for leave to defend. The court held that the defendant failed to disclose any triable issue or bona fide defence.
Law Points
- Order 37 CPC
- Leave to defend
- Triable issue
- Bona fide defence
- Summary suit
