9911796707
TMI Blog2008 (10) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... ads, was introduced in Order 37 of the Code by way of amendment with effect from 1st February, 1977. Prior to such amendment, Rule 3 of Order 37 was as follows :- "Rule 3. (1) The Court shall, upon an application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. (2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit." By virtue of the Code of Civil Procedure (Amendment) Act, 1976, Rule (3) of Order 37 was substitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso be profitable to refer to Sub-rule (6) which provides as follows:- "(6) At the hearing of such summons for judgment, - (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith." 4. In the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant/appellant was not sham, moonshine or illusory. The High Court accordingly modified the unconditional leave granted to the defendant/appellant to defend the suit and restricted the same to the claim of the plaintiff-company to the amount excluding the total demand of Euro 3,20,967.51 covered under the documents Annexures G-1 and G-2. The High Court directed that leave to defend the suit in respect of the claim of the plaintiff-company for the said amount of Euro 3,20,967.51 would be subject to the condition that the defendant/appellant firm would deposit in the trial court 55% of the said amount within eight weeks from the date of the orders of the High Court. 7. The defendant/appellant has come up to this Court challenging the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed, that the exercise of discretion by the trial court to grant unconditional leave to defend may be questioned. 10. In addition to his aforesaid submissions Mr. Ratnam urged that in the absence of any error of jurisdiction or the illegal exercise of jurisdiction or the exercise of jurisdiction with material irregularity, the High Court had no jurisdiction to entertain the revisional application filed by the respondent. Mr. Ratnam submitted that as a legal proposition, it was well established that in revisional jurisdiction even a wrong order cannot be corrected or interfered with and that the scope of interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efend a suit can be granted. 13. Mr. Sharma submitted that the admission by the appellant that there were certain dues which would be paid by the end of December, 2002, the High Court was justified in directing the appellant to deposit 55% of the admitted amount as a condition precedent for grant of leave to defend the suit in accordance with the provisions of the second proviso to Sub-rule (5) of Rule 3 of Order 37 as it now stands after the amendment effected with effect from 1st February, 1977. Mr. Sharma urged that there was, therefore, no ground or reason for this Court to interfere with the discretion exercised by the High Court in the impugned order. 14. Having considered the submissions made on behalf of the respective parties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court did not lack jurisdiction to pass an order with regard to the subject matter of dispute, though the order itself may be incorrect. There is, therefore, little scope for this Court to interfere with the directions given to the appellant herein to deposit in Court 55% of the admitted dues as a pre-condition to grant of leave to defend a suit. The judgment of the High Court impugned in this appeal does not warrant any interference since the trial Court had exercised its jurisdiction under the second proviso to Sub-rule (5) of Rule 3 of Order 37 of the Code. The earlier concept of granting unconditional leave when a triable issue is raised on behalf of the defendant, has been supplemented by the addition of a mandate, which has been imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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