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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

906 WRIT PETITION NO.8198 OF 2020

ASHA BHANUDAS LOKHANDE

VERSUS

ANIL DYNANESHWAR KARDILE

...

Advocate for Petitioners : Mr. Shaikh Tarek Mobin H.

Advocate for Respondent : Mr. D. R. Markad h/f

Mr. A. N. Kakade

…

CORAM : AVINASH G. GHAROTE, J.

DATED : 1^st JULY, 2021.

...

PER COURT :

1.

Heard Mr. Mobin Shaikh, learned counsel for the petitioner

and Mr. D.R. Markad learned counsel holding for Mr. Kakade,

learned counsel for the respondent sole.

2.

In a summary suit based upon a cheque the trial court has

condoned the delay in fling the application for leave to defend

and has also granted leave to defend being aggrieved by which

the present petition has been fled. Mr. Mobin Shaikh, learned

counsel for the petitioner submits, that the delay could not have

been condoned as no valid reasons were given and so also the

unconditional leave to defend could have been granted. He

invites my attention to para 13 of the impugned order which are

the only reasons given by the learned trial court for grant of

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leave to defend, which are to the efect that since the defendant

has denied all the allegations, therefore, leave to defend could

be granted, and submits that this cannot be the reason for grant

of leave.

3.

Mr. D. R. Markad, learned counsel for the respondent

defends the order passed by the learned trial court contending

that under Sub-Rule 7 of Order 37 of CPC, the court for sufcient

reasons, is empowered to condone the delay and the reasons

shown were sufcient. He further submits, that the court has

rightly granted unconditional leave to defend, as all the

allegations in the plaint were denied.

4.

With the assistance of the learned counsel, I have perused

the applications at Exhs-8 & 12. The delay in fling the

application is 28 days, for which justifcation has been found by

the learned trial court, being ignorance of law. Though this

cannot be a ground to accept the delay, however, in view of the

fact, that in the summons served upon the defendant, the date

of appearance was mentioned as 29/01/2020, on which date,

the application for leave to defend was fled, the same is

justifed reason for allowing the application for condonation of

delay.

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5.

In so far as the granting of unconditional leave is

concerned, mere denial of the plaint averments cannot be held

to be a ground sufcient to grant unconditional leave to defend.

The trial court, has to form an opinion that a substantial defence

has been raised, which would entitle the grant of unconditional

leave. For this the learned trial court cannot look into the

written statement accompanying the application for leave to

defend, but has only to look into the contents of the application

to leave to defend. Bare perusal of the application for leave to

defend, indicates that there is absolutely nothing therein which

could be said to form a substantial defence as contemplated by

the frst proviso to Sub-Rule 5 of Order 37 of CPC. This being

the position, the impugned order so far as a it relates to grant of

unconditional leave, cannot be sustained, and has to be set

aside. The petition is therefore partly allowed. The application

for grant of unconditional leave, is accordingly dismissed. Rule

accordingly.

(AVINASH G. GHAROTE, J.)

vsm/-