Case Note & Summary
The petitioner, M/S Kuber Steel Traders, a partnership firm, filed a summary suit (Summary Suit No. 5 of 2015) against the respondent, M/s Yash Enterprises, for recovery of money. The defendants filed an application (Exhibit 21) seeking leave to defend the suit. The trial court allowed this application unconditionally by order dated 29.2.2016. Aggrieved by this order, the petitioner filed the present writ petition. The High Court heard the parties and noted that there was no dispute regarding the procedure under Order XXXVII of the Code of Civil Procedure, 1908 (CPC). The court reproduced Order XXXVII Rules 3 to 5, which govern the appearance of defendants and the grant of leave to defend. The court observed that the trial court had exercised its discretion in allowing unconditional leave, and the petitioner had not demonstrated any error in that exercise. The High Court dismissed the writ petition, upholding the trial court's order. The court held that the defendant had raised triable issues and disclosed a meritorious defence, justifying unconditional leave. The petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Order XXXVII, Code of Civil Procedure, 1908 - The trial court allowed the defendant's application for leave to defend unconditionally in a summary suit. The High Court upheld the order, holding that the defendant had raised triable issues and disclosed a meritorious defence, justifying unconditional leave. (Paras 4-5)
Issue of Consideration
Whether the trial court was justified in allowing the defendant's application for leave to defend unconditionally in a summary suit under Order XXXVII of the Code of Civil Procedure, 1908.
Final Decision
Writ petition dismissed. The order dated 29.2.2016 passed by the trial court in Summary Suit No. 5 of 2015 is upheld. No order as to costs.
Law Points
- Summary suit procedure
- Leave to defend
- Order XXXVII CPC
- Triable issues
- Unconditional leave
Case Details
2017 LawText (BOM) (07) 8
Writ Petition No. 5650 of 2016
Shri S.S.Patil for Petitioner, Shri M.G.Deokate for Respondents 1 to 4
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Nature of Litigation
Writ petition challenging order granting unconditional leave to defend in summary suit.
Remedy Sought
Petitioner sought to set aside the trial court's order allowing defendant's application for leave to defend unconditionally.
Filing Reason
Petitioner was aggrieved by the trial court's order dated 29.2.2016 in Summary Suit No. 5 of 2015 allowing the defendant's application Exhibit 21 unconditionally.
Previous Decisions
Trial court allowed defendant's application for leave to defend unconditionally.
Issues
Whether the trial court was justified in granting unconditional leave to defend in a summary suit under Order XXXVII CPC.
Submissions/Arguments
Petitioner argued that the trial court erred in allowing unconditional leave to defend.
Respondent supported the trial court's order.
Ratio Decidendi
In a summary suit under Order XXXVII CPC, the court may grant unconditional leave to defend if the defendant raises triable issues and discloses a meritorious defence. The trial court's discretion in granting such leave should not be interfered with unless it is perverse or arbitrary.
Judgment Excerpts
The petitioner is aggrieved by the order dated 29.2.2016, passed by the trial Court in Summary Suit No. 5 of 2015, by which, application Exhibit 21, filed by the defendants has been allowed unconditionally.
There is no dispute that in Summary Suits under Order XXXVII of the Civil Procedure Code (“CPC”) a procedure for appearance of the defendants is prescribed.
Procedural History
The petitioner filed Summary Suit No. 5 of 2015. The defendants filed application Exhibit 21 for leave to defend. The trial court allowed it unconditionally on 29.2.2016. The petitioner filed the present writ petition challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXXVII Rules 3, 4, 5
