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Judgment
A.K. Rajan, J.—The civil revision petition has been filed challenging the Order of granting leave on the ground that the Order passed is illegal and it is contrary to the second provisio to O.37 R.3(5) CPC - where 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. In this case, the defendant has admitted the amount claimed by the plaintiff based on invoices. Therefore, the leave ought not to have been granted by the trial Court. In as much as the leave has been granted, which is contrary to the second proviso, the Order has to be set aside.
No representation for the respondent.
According to O. 37 R. 3(5) CPC, a leave shall not be granted when the amount claimed in the suit is admitted by the respondent/defendant. But, in this case, the learned counsel for the revision petitioner pointed out that in the communication dated 15.5.1999, the respondent has admitted that he has to pay a sum of Rs. 6,53,487.88. This was confirmed by the revision petitioner herein by letter dated 22.5.1999. To the question that this amount varies from the balance which was sought to be confirmed by the respondent, the learned counsel for the revision petitioner replied that this amount of Rs. 10,10,348.00 is the principal (Rs. 6,53,487.88) plus interest payable till that date. Therefore, there is an admission and hence, the leave granted is illegal.
This argument of the learned counsel for the revision petitioner is not acceptable. A leave cannot be granted when the amount is admitted and further when the amount is not disputed or not disputable, leave cannot be granted. But, in this case, from the communication dated 15.5.1999 it is clear that according to the respondent the amount due was only Rs. 6,53,487.88 as on date. But, according to the revision petitioner the amount payable is Rs. 10,10,348.00. Therefore, the amount payable is disputed.
Further, according to O. 37 R. 3(5) CPC - when the respondent/defendant appears on summons and files the petition for leave to defend, 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. Under this provision, the Judge or the Court has the discretion to grant leave unconditionally. It is a discretionary power of the Court. Therefore, grant of unconditional leave is not illegal and not contrary to O. 37 R. 3(5) CPC. Therefore, the impugned Order is not illegal and hence the civil revision petition is dismissed. No costs. The connected civil miscellaneous petition is closed.