The court has the discretion to set aside harsh conditions imposed by lower courts and replace them with more reasonable alternatives.

JUDGMENT

Dinesh Mehta, J. - The matter comes up on an application (I.A. No.01/2021) seeking extension of the interim order dated 15.02.2005 passed by this Court.

2. By way of the present writ petition the petitioner has challenged the order dated 13.12.2004, passed by the learned Additional District Judge No.2, Jodhpur giving the present petitioner, leave to defend, subject to depositing a bank guarantee of Rs. 93,870/-.

3. Mr. Tantia, learned counsel for the petitioner, submitted that the proceeding before the learned Additional District Judge No.2, Jodhpur in Case No.94/2002 has been stayed and the trial Court is proceeding with the matter in the light of judgment of Hon'ble the Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation.

4. Learned counsel for the petitioner further expressed a concern that the matter is pending consideration before this Court and despite interim order, the trial Court is proceeding with the matter as aforesaid.

5. On 15.02.2005 while admitting the writ petition, this Court had stayed the effect and operation of the order dated 13.12.2004 to the extent of furnishing bank gurantee of Rs.93,870/-. The order dated 15.02.2005 reads thus :

"Heard.

Admit. Issue notice of the writ petition as well as of the stay petition.

Meanwhile, the operation of the order dated 13.12.2004 so far as directing the petitioner to submit the bank guarantee of Rs.93,870/- is concerned, shall remain stayed."

6. According to this Court, reading of the order dated 13.12.2004 passed by the trial Court so also the order dated 15.02.2005 leaves no room for ambiguity that this Court had never stayed the proceedings pending before trial Court per-se.

7. Effect of interim order dated 15.02.2005 is that the condition imposed while granting leave to defend by order dated 13.12.2004, more particularly stipulation regarding furnishing of bank guarantee of Rs.93,870/- has been stayed. In other words, the petitioner's right to defend has been made unqualified/unconditional. This being the position, there was no impediment for the trial Court to proceed further in the matter.

8. No one appears on behalf of the respondent.

9. In view of the aforesaid, instead of extending the interim order, this Court deems it appropriate to dispose of the present writ petition, as the matter which was admitted on 15.02.2005, is pending for last 16 years.

10. In considered opinion of this Court condition of furnishing bank guarantee to the tune of Rs.93,870/- imposed by the trial Court is a bit too harsh. Issuance of bank guarantee requires deposit of equal amount in the bank apart from huge charges. That apart, renewal of bank guarantee every time has its own cost and hazards.

11. That apart, upon perusal of the record, this Court finds that the petitioner has a fairly arguable case and reasonable defence.

12. In view of the aforesaid, the condition to tendering a bank guarantee of Rs.93,870/- is obliterated, particularly when such condition had been stayed by this Court.

13. Had the trial Court and parties understood the import of the interim order properly, the suit would have been decided by this time.

14. Writ petition is allowed. Condition of furnishing bank guarantee of Rs.93,870/- in the impugned order dated 13.12.2004 is set aside. The petitioner shall, however, furnish a solvent surety of Rs.1 lakh within a period of one month. On furnishing of the same within the stipulated period, the trial Court shall take petitioner's written statement on record and proceed in accordance with law.

15. Stay application too stands disposed of accordingly.