Granting of unconditional leave to defend in summary trial – Legal Propositions

Whether leave to defend in a summary suit can be granted to a Defendant unconditionally or upon such terms as may appear to the Court or Judge to be just to put the defendant on terms? The Supreme Court in M/s. Mechelec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation, decided on 01.11.1976 (reported as AIR 1977 SC 577) enlisted propositions as to when an unconditional leave can be granted or the defendant can be put on terms to defend a summary suit (Order 34 Rule 3(5) of the Code of Civil Procedure, 1908). The propositions, as were enumerated by the Apex court are as under:

a.    If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend;

b.    If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend; 

c.    If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff’s claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security;

d.    If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend;

e.    If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plaintiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to prove a defence.