Case Note & Summary
The plaintiff, Sushilarani Baburao Patel, filed a summary suit under Order 37 of the Code of Civil Procedure, 1908, against the defendant, Geeta Patel D'Souza, seeking eviction from a flat in Girnar Apartments, Bandra, Mumbai. The plaintiff alleged that the defendant was a licensee who had sublet the premises without consent and that the plaintiff required the flat for her own use. The defendant filed a Chamber Summons seeking leave to defend the suit, contending that she was a tenant, not a licensee, and that the plaintiff's requirement was not bona fide. The court examined the affidavit in support of the leave application and found that the defendant had raised triable issues, including whether the plaintiff genuinely needed the premises and whether there was any subletting. The court held that under Order 37 Rule 3(5) CPC, if the defendant's affidavit discloses facts that, if proved, would constitute a defence or raise a triable issue, leave to defend must be granted. The court noted that the defendant's affidavit was not frivolous or vexatious and that the issues raised required trial. Consequently, the court allowed the Chamber Summons and granted unconditional leave to defend, directing the defendant to file her written statement within four weeks. The suit was to proceed as a regular suit.
Headnote
A) Civil Procedure - Leave to Defend - Order 37 Rule 3(5) CPC - Triable Issues - Tenant's application for leave to defend in a summary suit for eviction - Court held that if the affidavit discloses facts which, if proved, would constitute a defence or raise a triable issue, leave must be granted - The tenant's claim that the landlord's requirement was not bona fide and that there was no subletting raised triable issues - Held that unconditional leave to defend must be granted (Paras 1-10).
Issue of Consideration
Whether the applicant/defendant is entitled to leave to defend the suit under Order 37 of the Code of Civil Procedure, 1908, on the ground that the affidavit discloses triable issues.
Final Decision
The Chamber Summons is allowed. The defendant is granted unconditional leave to defend the suit. The defendant shall file her written statement within four weeks. The suit to proceed as a regular suit.
Law Points
- Leave to defend
- Order 37 CPC
- Triable issues
- Bona fide requirement
- Subletting
- Unconditional leave
