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A-8
% 02.8.2011
Present: Mr.VK.Kalra,Advocate for the petitioner.
Ms.Babita Seth, Advocate for respondent.
+CM(M)No.196/2010
*
Present suit has been filed under Order XXXVII of the Code of Civil Procedure (hereinafter referred to as 'the Code'). It is not in dispute that it was decreed ex parte on 27.5.2006. Thereafter the defendant had filed two applications; the first application was under Order XXXVII Rule 3 of the Code and the second application was under Order XXXVII Rule 4 of the Code. Both the said applications have been filed on 06.10.2007. The trial judge on
25.5.2009 had disposed the said applications. Vide order dated
25.5.2009 defendant had been granted leave to defend and written statement had been directed to be filed by him. Order dated
25.5.2009 was the subject matter of appeal before the first appellate court which vide order dated 19.12.2009 had been set aside thereby restoring the original decree dated 27.5.2006 in favour of the plaintiff. Contention of the respondent is that the order 25.5.2009 specifically states that court is dealing only with the application under Order XXXVII Rule 3 of the Code and the application under Order XXXVII Rule 4 of the Code had not been dealt with. In the impugned order the appellate court had noted
2011:DHC:8803
A-8
% 02.8.2011
Present: Mr.VK.Kalra,Advocate for the petitioner.
Ms.Babita Seth, Advocate for respondent.
+CM(M)No.196/2010
*
Present suit has been filed under Order XXXVII of the Code of Civil Procedure (hereinafter referred to as 'the Code'). It is not in dispute that it was decreed ex parte on 27.5.2006. Thereafter the defendant had filed two applications; the first application was under Order XXXVII Rule 3 of the Code and the second application was under Order XXXVII Rule 4 of the Code. Both the said applications have been filed on 06.10.2007. The trial judge on
25.5.2009 had disposed the said applications. Vide order dated
25.5.2009 defendant had been granted leave to defend and written statement had been directed to be filed by him. Order dated
25.5.2009 was the subject matter of appeal before the first appellate court which vide order dated 19.12.2009 had been set aside thereby restoring the original decree dated 27.5.2006 in favour of the plaintiff. Contention of the respondent is that the order 25.5.2009 specifically states that court is dealing only with the application under Order XXXVII Rule 3 of the Code and the application under Order XXXVII Rule 4 of the Code had not been dealt with. In the impugned order the appellate court had noted
2011:DHC:8803
that the applications under Order XXXVII Rule 3 and the application under Order XXXVII Rule 4 had been filed by the defendant before the trialjudge; in fact the order dated 25.5.2009 while granting leave to defend to the defendant and permitting him to file his written statement was an order necessarily to be passed under the provisions of Order XXXVII Rule 4 of the Code and even if the trial court omitted to mention that this order is dealing with the application under Order XXXVII Rule 4 of the Code; the gist and import of the order dated 25.5.2009 showed that both the applications of the defendant under Order XXXVII Rule 3 and
XXXVII Rule 4 of the Code had been examined by the trial judge.
The order dated 25.5.2009 had strictly not set aside the ex parte dated 27.5.2006 but the very fact that the defendant had been granted permission to file his written statement necessarily meant that the decree dated 27.5.2006 had been set aside. Triable issue had arisen leave to defend had been granted to the defendant and as such he was directed to file his written statement. The appellate court had examined this
XXXVII Rule 4 of the Code had been examined by the trial judge.
The order dated 25.5.2009 had strictly not set aside the ex parte dated 27.5.2006 but the very fact that the defendant had been granted permission to file his written statement necessarily meant that the decree dated 27.5.2006 had been set aside. Triable issue had arisen leave to defend had been granted to the defendant and as such he was directed to file his written statement. The appellate court had examined this
JUDGMENT
in appeal and passed the impugned order dated 19.12.2009.
The subject matter ofthe dispute is a purported hundi(page
24 of the paper book). Contention of the defendant is that this is not a promissory note; it is no undertaking on the part of the defendant to pay back any amount; his defence all along was that he had paid a sum of Rs.58,000/- to the plaintiff and liberty should have been granted to him in these circumstances to defend his case. These contentions were rightly noted by the trialjudge in its order dated 25.5.2009 whereby leave to defend had been granted in favour of the defendant. The impugned order setting aside this order dated 25.5.2009 suffers from a patent illegality as defendant had raised a triable issue which required adjudication; he should have been granted liberty to defend his case. The impugned order is accordingly set aside.
Petitioner states that the written statement has already been filed by him. Trial court will proceed to deal witl^the case on its merits.
Petition is disposed of.
INDERMEET KAUR,J.
AUGUST 02,2011 nandan
The subject matter ofthe dispute is a purported hundi(page
24 of the paper book). Contention of the defendant is that this is not a promissory note; it is no undertaking on the part of the defendant to pay back any amount; his defence all along was that he had paid a sum of Rs.58,000/- to the plaintiff and liberty should have been granted to him in these circumstances to defend his case. These contentions were rightly noted by the trialjudge in its order dated 25.5.2009 whereby leave to defend had been granted in favour of the defendant. The impugned order setting aside this order dated 25.5.2009 suffers from a patent illegality as defendant had raised a triable issue which required adjudication; he should have been granted liberty to defend his case. The impugned order is accordingly set aside.
Petitioner states that the written statement has already been filed by him. Trial court will proceed to deal witl^the case on its merits.
Petition is disposed of.
INDERMEET KAUR,J.
AUGUST 02,2011 nandan