T. Rajmohan vs C. Chockalingam

P.D. Dinakaran, J.—Aggrieved by an order dated 21.8.2001 made in I.A.No.2304 of 2001 in O.S.No.5354 of 2000 on the file of the

learned I Assistant City Civil Judge, Chennai, permitting the respondent/defendant to defend his case under Order 37 Rule 5, C.P.C., the plaintiff

in O.S.No.5354 of 2000, laid for recovery of money to the tune of Rs.1,70,000/- along with interest at Rs.2.50 per Rs.100/- per month, has filed

the above revision.

Order 37 Rule 5 of the CPC reads as follows:

Order 37 Rule 5, C.P.C.:

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts

as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, 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:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a

substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of 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 unless the amount so admitted to be due is deposited by the defendant in Court.

The first proviso to Order 37 Rule 5 confers a right on the defendant to seek leave to defend himself, and such right shall not be refused unless

the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended

to be put up by the defendant is frivolous or vexatious.

The first proviso, therefore, makes it clear that the defendant who seeks a leave to defend himself under Order 37 Rule 5, C.P.C., should satisfy

the Court that he has a substantial defence to raise and that the defence is not frivolous or vexatious, in which event, the Court shall not refuse the

leave to defend. But the said proviso further imposes a bar in granting such leave to the extent of amount claimed by the plaintiff, if admitted by the

defendant to be due from him.

If the averment of the respondent/defendant is tested in the light of the provisions contained in Order 37 Rule 5, C.P.C., since the revision

petitioner/plaintiff himself has stated that there was due towards hand loan of Rs.30,000/- availed by the respondent/defendant from the revision

petitioner/plaintiff, no leave can be granted to the respondent/defendant on account of such claim of the revision petitioner/plaintiff. This aspect of

the case has not been dealt with by the learned I Assistant City Civil Judge, Chennai, while granting leave by order dated 21.8.2001 made in

I.A.No.2304 of 2001 in O.S.No.5354 of 2000. Hence, I am obliged to modify the order dated 21.8.2001 in I.A.No.2304 of 2001 in

O.S.No.5354 of 2000 on the file of the learned I Assistant City Civil Judge, ksv P.D.DINAKARAN,J Chennai, granting leave to the

respondent/defendant to defend his case in O.S.No.5354 of 2000, on condition that the respondent/defendant deposits a sum of Rs.30,000/- to

the credit of O.S.No.5354 of 2000 within four weeks from the date of receipt of a copy of this order, which shall be disbursed subject to the

result of the suit, and till then, the learned I Assistant City Civil Judge, Chennai, is directed to deposit the said amount in fixed deposit in a

nationalised bank for a minimum period of one year, which shall be renewed from time to time during the pendency of the suit.

The revision is ordered accordingly. No costs. Consequently, C.M.P.No.16833 of 2001 is closed.