( 1 ) THIS Revision Application is directed against an order passed by the city Civil Court on 12. 1. 2000 below the petitioners application for leave to defend which is Exh. 14 in Summary Civil Suit No. 5114/1998 by which the City Civil Court directed the petitioner to deposit a sum of Rs. 12,000/- and thereby granted conditional leave to defend the suit.

( 2 ) THE facts goes to suggest that the respondent herein a former employee of the petitioner Bank retired on 28. 2. 1997. On retirement the respondent claimed Earned leave Encashment to the extent of 156 days. As per the record of the Bank the respondent was paid the encashment of Earned Leave to the extent of 132 days and, therefore, the question arise for the encashment of Earned Leave of 24 days. All other retirement benefits to the tune of Rs. 72,179/- including leave encashment to the extent of 132 days was paid to the respondent, therefore, a suit came to be filed by the respondent for the recovery of Earned leave encashment of the disputed amount of 24 days an amount of Rs. 12,000/- wa claimed for leave encashment of 24 days, interest thereon at the rate of 24% per annum from 1. 3. 1997 to the date of the suit amounting to rs. 6,500/- also claimed by the respondent and the interest upon Rs. 72,179/- for 132 days Earned Leaves from 1. 3. 1997 to the date of suit perhaps at the rate of 24% per annum was claimed to the tune of Rs. 25,248. 44 ps. amounting in all to Rs. 33,748. 44 ps. A summons for the judgment came to be issued by the City Civil Court in Summary suit No. 5114/1998 to which leave to defend affidavit-cum-written statement came to be filed by the present petitioner - State Bank of Saurashtra wherein it was stated that though there was 156 days leaves at the credit of the employee concerned but since the employee had enjoyed more sick leaves then entitlement as mentioned in the Written statement and commuting such sick leaves, 24 Earned Leaves were required to be deducted out of the 156 days leaves standing at the credit of the employee and, therefore, encashment of 132 days Earned Leaves was allowed. It was also contended that the employee concerned served at various branches where his service record was maintained and in Para-7 an account of sick leave enjoyed by the present respondent are given in detail which comes to 318 days in all commuting the same it comes to 636 days and hence it was disputed that the employees concerned - the original plaintiff was not entitled to 24 days Earned Leave as claimed by him.

( 3 ) AFTER hearing the parties, the learned City Civil Judge vide his impugned order was pleased to grant conditional leave to the present petitioner on deposit of Rs. 12,0007- within three weeks and filing of Written Statement within two months and the said order is impugned in this Revision Application.

( 4 ) LEARNED advocate Mr. A. S. Vakil, for the petitioner and learned advocate Mr. N. R. Pujari, for the respondent were heard at length.

( 5 ) AT the very outset the learned advocate Mr. Vakil raised the preliminary point that whether the suit can be treated as a Summary Suit. It was argued that the dispute which has arisen between the parties is not falling within ambit of Order-37 Rule- 1 sub-clause (2) and, therefore, the Trial Court has committed a jurisdictional error in passing the impugned order. It was further stated that in the Trial Court the respondent did not file any reply to the application to leave to defend and controverted the facts mentioned in leave to defend application. It was further stated that as per the record of the Bank though there were 156 days leave at the credit of the employee but since he enjoyed sick leaves more then entitlement the said sick leaves were required to be adjusted against the Earned Leave after commuting the same and, hence, the encashment to the extent of 132 days leave was allowed. It was urged that this fact is not controverted by filing rejoinder on affidavit by the plaintiff.