( 1 ) THE petitioner original defendant is before this Court being aggrieved by order dated 16-10-2006 passed by the learned Additional Senior Civil Judge, gandhidham below Exhibits 15 and 18 in special Civil Suit No. 19 of 2003. It is prayed that the said order be modified and the present petitioner defendant be permitted to defend the suit unconditionally and the condition of furnishing bank guarantee of Rs. 60 lakhs be quashed and set aside.

( 2 ) THE matter was argued by the learned senior counsel for the petitioner Mrs. Ketty a. Mehta, who did not point out that the order under challenge is passed after the matter was remanded by this Court. The learned advocate Mr. Soni for the respondent original plaintiff pointed out to this court that earlier the respondent herein had approached this Court by Special Civil Application No. 17851 of 2005 and by order dated 12-7-2006 (Coram : Hon ble Mr. Justice A. M. Kanadial, the matter was remanded. Learned Advocate Mr. Soni invited attention of the Court to the relevant observations made by this Court in order dated 12-7-2006. Operative part of the order reads as under :

"12. For the foregoing reasons, the petition is allowed with no order as to costs. The impugned order 26-7-2005 passed by the learned Additional Senior Civil Judge, gandhidham, Kachchh, below application ex. 18 is hereby quashed and set aside and the matter is remanded to the learned trial judge for deciding the application Ex. 15 summons for judgment filed by the plaintiff and the application Ex. 18 filed by the defendant seeking unconditional leave to defend the suit afresh, after giving ample opportunity to both the parties. "

( 3 ) THE property demands that the learned senior counsel for the petitioner ought to have invited attention of the Court to this important aspect of the matter. For the reasons best known to the learned senior counsel, she did not invite attention of the Court to this particular aspect of the matter.

( 4 ) LEARNED advocate for the respondent mr. Soni invited attention of the Court to the other observations made by this Court in its order dated 12-7-2006 in paragraphs 6, 7, 9 and 10, the same are reproduced hereunder for ready reference : "6. Mr. CL Soni, learned advocate of the plaintiff, submitted that the order granting unconditional leave to defend the suit is an unreasoned order. He also submitted that though the plaintiff has produced High Sea sales bills issued by the plaintiff to the defendant and High sea Purchase Letters addressed by the defendant to the Assistant commissioner of Customs, Custom House, kandla, declaring that it has purchased the goods in the consignments from the plaintiff, the learned trial Judge has considered only the books of accounts and jumped to the conclusion that since the entries in the ledger produced by the plaintiff have no evidentiary value, there is a triable issue between the parties and, therefore, the defendant is entitled to unconditional leave to defend the suit. Mr. Soni, learned advocate of the plaintiff has also asserted that the defendant has made total denial about the purchase of goods by it from the plaintiff though it has confirmed the purchase of goods from the plaintiff in the letters written to the assistant Commissioner of Customs. Therefore, according to Mr. Soni, learned advocate of the plaintiff, the learned trial Judge has failed to exercise the jurisdiction vested in him and, therefore, it has resulted in miscarriage of justice and since the learned trial Judge has committed jurisdictional error, this Court can correct it in exercise of the powers conferred under article 227 of the Constitution. He, therefore, urged to allow the petition by quashing and setting aside the impugned order passed by the learned trial Judge.

7. Per contra, Mr. Nalin Thakkar, learned advocate of the defendant, has supported the order passed by the learned trial Judge granting unconditional leave to defend the suit. Mr. Thakkar has submitted that the d

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