The defendant should be granted unconditional leave to defend the suit unless it is demonstrated that no substantial defence is raised or the defence is frivolous or vexatious.

JUDGMENT :

SARAL SRIVASTAVA, J.

1. Heard learned counsel for the revisionist.

2. The revisionist, who is plaintiff in Original Suit No. 37 of 2020 under Order 37 C.P.C. has assailed the order dated 03.03.2023 passed by Civil Judge (Senior Division), Varanasi granting unconditional leave to the respondent to contest the suit instituted by the revisionist.

3. The suit has been instituted on the ground that the revisionist has lent an amount of Rs. 69,75,000/- through various cheques and other modes to the respondent, but the respondent has returned only Rs. 1,20,000/-.

4. In the suit, notices were issued. On appearance of respondent in the suit, the revisionist as per procedure contemplated under Order 37 Rule 4 of C.P.C. served the respondent a summon for judgment in form No. 4-A in appendix B supported by the affidavit stating the details in the paragraph 4 of the affidavit regarding various payments totalling Rs. 1,20,000/- paid by the respondent through various cheques. The respondent further in Para 5 of the affidavit filed in support of summons of judgment have disclosed the details of cheque given by the respondent which was dishonoured by the bank due to insufficiency of fund. In Para 6 of the affidavit, the revisionist has disclosed two cheques received from respondent amounting to Rs. 1,20,000/- which were encashed. It is further stated that the respondent became dishonest and does not intend to pay the money given by the revisionist, and since the respondent has no defence to suit, therefore, respondent is not entitled to any opportunity as provided under Order 37 Rule 3 (5) of C.P.C. to defend the suit.

5. The respondent filed reply to the aforesaid affidavit denying the fact that they have taken any loan from the revisionist. It is further stated that the husband of the revisionist is Sub Inspector and the suit has been instituted with the collusion of her husband. It is further stated that the respondent has given an amount of Rs. 31,80,000/- through various cheques details whereof has been stated in paragraph 11 of the reply of the respondent and to avoid the payment of such amount, the suit has been instituted by the revisionist. Accordingly, it is prayed that the respondent be granted unconditional leave to contest the suit.

6. Challenging the order, learned counsel for the revisionist has contended that the subordinate court has committed material irregularity and failed to exercise jurisdiction vested in it in rejecting the application. It is submitted that perusal of the reply of the respondent against the affidavit filed by the revisionist in support of summon reveals that the defence set up by the respondent is malicious and the respondent has no plausible defence to contest the suit. Thus, it is submitted that the subordinate court has erred in law in granting unconditional leave to the respondent to contest the suit. It is submitted that perusal of objection reveals that no bona fide or real triable issue is raised in the objection and in such condition, the trial court while granting leave ought to have imposed some strict condition in granting the leave.

7. I have considered the contentions of learned counsel for the revisionist and perused the record.

8. The facts as emanate from the record are that the suit has been instituted by the revisionist under Order 37 of C.P.C. for recovery of an amount of Rs. 68,55,000/- along with interest on the ground that the revisionist has given a loan of Rs. 68,55,000/- through various cheques out of which respondent has paid only Rs. 1,20,000/-. The further ground in the suit is that two cheques given by the respondent were dishonoured due to insufficiency of fund.

9. The subordinate court issued notice to the defendant. On appearance of the defendant, the revisionist filed summons along with affidavit in the Form 4-A of Appendix B again reiterating that the revisionist has paid Rs. 68,55,000/- through various cheques the details whereof has been stated in paragraph 4 of the a