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Judgment
M.R. Shah
RULE. Shri Udayan P. Vyas, learned advocate waives service of notice of rule on behalf of the respondent. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of respective parties, the present application is taken up for final hearing today.
The present Civil Revision Application u/s 115 of the CPC has been preferred by the applicants-original defendants to quash and set aside the impugned order dated 18/01/2012 passed by the learned Small Cause Court, Surat in Summary Suit No. 3/2006 by which on an application submitted by the applicants to grant unconditional leave to the applicants to defend Summary Suit No. 3/2006, the learned trial Court has granted conditional leave to the applicants-original defendants to defend the suit on condition that the applicants shall deposit 25% of the suit claim.
Shri Masoom K. Shah, learned advocate appearing on behalf of the applicants-original defendants has vehemently submitted that considering the fact that the aforesaid Summary Suit has been filed against the applicants as heirs and legal representative of Parsarav Govindrav Lad, who has alleged to have executed the promissory note and on the basis of which the Summary Suit has been filed, such a Summary Suit under Order 37 of the CPC is not maintainable. It is submitted that considering the defense raised, there are triable issues and, therefore, the learned trial Court ought to have granted unconditional leave to defend the suit.
Shri Masoom K. Shah, learned advocate appearing on behalf of the applicants has heavily relied upon the decision of the Delhi High Court in the case of Smt. Sarala Devi and Ors. Vs. Daya Ram and Ors reported in 1996 AIHC 3152 as well as the decision of the Bombay High Court in the case of Rajesh Steel Centre Vs. Smt. Rashmi K. Agarwal reported in 1986 Mh L G 953.
Shri Vyas, learned advocate appearing on behalf of the respondent-original plaintiff has tried to distinguish the judgment of the Delhi High Court, which has been relied upon by the applicants. However, he has submitted that if this Court is of the opinion that there are triable issues and the question with respect to maintainability of the suit against the applicants-original defendants is kept open, he does not invite any further reasoned order while quashing and setting aside the impugned order granting conditional leave to the applicants to the defend the suit is concerned. However, he has requested to make suitable observation that the aforesaid question is kept open, which be considered at the time of trial.
In view of the above stand taken by the learned advocate appearing on behalf of the respondent-original plaintiff recorded hereinabove, this Court is not assigning any further reasons while quashing and setting aside the impugned order granting conditional leave to the applicants to defend the aforesaid suit. However, suffice it to say, there are triable issues raised and, therefore, the applicants are entitled to unconditional leave to defend the aforesaid suit. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds and the impugned order passed by the learned Small Cause Court, Surat in Summary Suit No. 3/2006 below leave to defend the application submitted by the applicants in not granting unconditional leave to the applicants is hereby quashed and set aside and accordingly unconditional leave application submitted by the applicants-original defendants is hereby granted and the applicants-original defendants are hereby granted unconditional leave to defend the aforesaid suit. However, it is made clear and specifically observed that the question with respect to the maintainability of the suit against the applicants, being the heirs of Parsarav Govindrav Lad, who is alleged to have executed the promissory note and on the basis of which the suit is filed, the said question is kept open to be considered at the time of trial. Rule is made absolute to the aforesaid extent. No cost.