Order 38 Rule 5 of Code of Civil Procedure - Case Law

Bench:

R.V. Raveendran, P. Sathasivam

Issue:

Whether the decision of High Court on setting aside the judgment of Trial court is right?

Facts:

• The Respondent of this suit, filed a suit before the Trial Court as Plaintiff for recovery of materials worth Rs.99,200/-.
• The Plaintiff filed his claim in Trial Court under Order 38 Rule 5 of C.P.C, in which he kept his prayer before the Court to direct the appellant/defendant to furnish security for the suit claim.
• The Trial dismissed the suit of the respondent/defendant, by stating that due amount from the defendant was not a sufficient cause.
• Aggrieved with the judgment of Trial Court, the plaintiff filed review for the Order passed by Trial Court under High Court.
• High Court decreed the claim of the plaintiff and ordered the defendant/appellant to furnish security for the suit amount within four weeks from date of the order passed by High Court.
• Appellant/defendant was not satisfied, hence challenged the appeal by Special Leave under Supreme Court.

Appellant's Contention:

The appellant/defendant contends that he/she cannot be debarred to deal with their property, because of a suit is to be filed or it is already filed. Therefore shifting of business from one place to another or removing machines to shift to another place cannot amount to the grounds for granting judgment. It is in the hands of the Plaintiff/Respondent to show a sufficient cause before invoking Order 38 Rule 5 of C.P.C.

Respondent's Contention:

The respondent stated that the Trial Court has failed to look into the merits of the suit, as they ignored to notice the defendant/appellant who had shifted business and machinery to some other place, which was out of the Jurisdiction of the Court. The appellant/respondent also failed to pay the due amount of Rs.99,200/-.

Judgment:

Honorable Supreme Court read Order 38 Rule 5 of C.P.C carefully and reversed the judgment given by the High Court.

“On the facts and circumstances, the High Court ought not to have interfered with the order rejecting the application. We, therefore, allow this appeal and set aside the order of the High Court and restore the order of the trial court.” said the Supreme Court of India.

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