JETHA SINGH v. CHAMAN LAL — 1967 DIGILAW 131 (DEL)

( 1 ) THE petitioner is defendant in a suit brought against him by the respondent under Order 37 of the Code of Civil Procedure for the recovery of Rs. 13,600 on account of principal and interest on the basis of a pronote executed by him in favour of the respondent for Rs. 10. 000. By his order dated the 6th February 1967. the learned Subordinate Judge granted leave to the petitioner to appear and defend the Nsuit on the condition that the petitioner deposited in cash by y of security the suit amount of Rs. 13,600 together with estimated costs of Rs. 1600 on or before 20th February 1967 ( 2 ) THE petitioner has come up in revision against the aforesaid order of the learned Subordinate Judge. His grievance is that the learned Subordinate Judge having held that the petitioner's defence raised triable issues had no jurisdiction to require him to deposit the entire amount in suit with costs as a condition for permission to defend the suit. ( 3 ) PERUSAL of the order of the learned Subordinate Judge shows that he was greatly impressed by the fact that on 7-12-1966 the petitioner had stated before him that if the plaintiff made a statement on oath with the sacred Gits in his hand that he had actually advanced a loan of Rs 10,000 to him. as against Rs 6000 alleged by the petitioner, fee plaintiff's claim against him be decreed and that the petitioner later on resiled from his undertaking The order also refers to certain telegrams sent by the petitioner to the plaintiff-respondent promising to pay the amount due to him from time to time. The learned Subordinate Judge was also greatly impressed by the fact that the petitioner had not produced any receipt evidencing repayment of Rs 3000 to the plaintiff. On the basis of these facts the learned Subordinate Judge came to the conclusion that although triable issues had been raised yet the defence disclosed was "highly unimpressive and seemed to have been put forth only to delay the expeditious disposal of the suit. " ( 4 ) IT is possible that the learned Subordinate Judge was justified in forming the impression which is reflected in his order. It is also true, as has been held by their Lordships of the Supreme Court in Milkhiram (India) Pvt. Ltd. v. Chaman Lal Bros. " ( 4 ) IT is possible that the learned Subordinate Judge was justified in forming the impression which is reflected in his order. It is also true, as has been held by their Lordships of the Supreme Court in Milkhiram (India) Pvt. Ltd. v. Chaman Lal Bros. , AIR 1965 SC 1698 and Santosh Kumar v. Bhai Mool Singh. (1958) 1 SCR 1211= ( AIR 1958 SC 321 ) that if on consideration of the material placed before the Court it comes to the conclusion that the defence is a sham one and is fantastic or highly improbable an order putting the defendant on term before granting leave to defend would be iustified. But even if the finding recorded by the learned Subordinate Judge about the petitioner's defence being highly unimpressive and having been put forth only with a view to delay the expeditious disposal of the suit, is held to be correct, there is hardly any justification for imposing the condition which the learned Subordinate Judge has imposed in this case. ( 5 ) THE principles that should guide the trial Courts while granting permission to defend the suit have been set out with utmost clarity in a recent judgment of the Punjab High Court in Naresh Chandra Mital v. Bishamber Nath, 1966 Delhi LT 352 (Punj- D) where my Lord the Chief Justice, then a Judge of that Court, observed: ''the Court has in exercising its discretion to keep in view the desirability of facilitating speedy decisions of suits upon bills of exchange, promissory notes and hundis and also to keel in view the drastic nature of the provisions contained in Rules 2 and 3 of Order 37 The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed iudiciously by the Court. In other words, the Court has to exercise judicial discretion, keeping in view the basic dictate of justice when determining the question whether or not to permit the defendant to contest the suit and if so whether unconditionally or on terms and what terms The idea of discretion, which Is always to be- exercised in a disciplined and responsible manner really represents a compromise between the idea that those who possess power should be trusted with free hand and not tied down to narrow and rigid groves and the competing notion that loose and unfettered discretion is dangerous weapon to entrust to any on including Courts. " ( 6 ) HAVING regard to the principles referred to above. I am of the view that the learned Subordinate Judge has almost prejudged the matters in controversy between the parties and has gone to the extent of ordering execution of the decree which may ultimately be passed against the petitioner. The condition imposed by him is onerous to a degree which almost forbids the petitioner from contesting the plaintiffs claim. The impugned Order is therefore modified to the extent that the petitioner is allowed leave to appear and defend the suit on the condition that adequate security is given by him for payment of the amount which may ultimately be decreed by the Court. ( 7 ) SINCE the order made by the learned Subordinate Judge has already resulted in delaying the disposal of the suit, the very evil which the learned Subordinate Judge was so anxious to prevent, I dircet the parties to appear before him on 10th August 1967 when the defendant would be called upon to furnish security to the satisfaction of the Court within ten days therefrom. Thereafter the case should proceed in accordance with law with utmost expedition. I may, however, mention that although the learned Subordinate Judge has expressed his views about the petitioner's defence in somewhat unqualified terms, I have no doubt that the petitioner's cast would be considered objectively, regardless of the tentative opinion already formed and expressed by him. ( 8 ) IN the circumstances of the case, although this revision petition is accepted there will be no order as to costs in this Court. ( 8 ) IN the circumstances of the case, although this revision petition is accepted there will be no order as to costs in this Court. ( 1 ) THE petitioner is defendant in a suit brought against him by the respondent under Order 37 of the Code of Civil Procedure for the recovery of Rs. 13,600 on account of principal and interest on the basis of a pronote executed by him in favour of the respondent for Rs. 10. 000. By his order dated the 6th February 1967. the learned Subordinate Judge granted leave to the petitioner to appear and defend the Nsuit on the condition that the petitioner deposited in cash by y of security the suit amount of Rs. 13,600 together with estimated costs of Rs. 1600 on or before 20th February 1967 ( 2 ) THE petitioner has come up in revision against the aforesaid order of the learned Subordinate Judge. His grievance is that the learned Subordinate Judge having held that the petitioner s defence raised triable issues had no jurisdiction to require him to deposit the entire amount in suit with costs as a condition for permission to defend the suit. ( 3 ) PERUSAL of the order of the learned Subordinate Judge shows that he was greatly impressed by the fact that on 7-12-1966 the petitioner had stated before him that if the plaintiff made a statement on oath with the sacred Gits in his hand that he had actually advanced a loan of Rs 10,000 to him. as against Rs 6000 alleged by the petitioner, fee plaintiff s claim against him be decreed and that the petitioner later on resiled from his undertaking The order also refers to certain telegrams sent by the petitioner to the plaintiff-respondent promising to pay the amount due to him from time to time. The learned Subordinate Judge was also greatly impressed by the fact that the petitioner had not produced any receipt evidencing repayment of Rs 3000 to the plaintiff. On the basis of these facts the learned Subordinate Judge came to the conclusion that although triable issues had been raised yet the defence disclosed was "highly unimpressive and seemed to have been put forth only to delay the expeditious disposal of the suit. On the basis of these facts the learned Subordinate Judge came to the conclusion that although triable issues had been raised yet the defence disclosed was "highly unimpressive and seemed to have been put forth only to delay the expeditious disposal of the suit. " ( 4 ) IT is possible that the learned Subordinate Judge was justified in forming the impression which is reflected in his order. It is also true, as has been held by their Lordships of the Supreme Court in Milkhiram (India) Pvt. Ltd. v. Chaman Lal Bros. , AIR 1965 SC 1698 and Santosh Kumar v. Bhai Mool Singh. (1958) 1 SCR 1211= ( AIR 1958 SC 321 ) that if on consideration of the material placed before the Court it comes to the conclusion that the defence is a sham one and is fantastic or highly improbable an order putting the defendant on term before granting leave to defend would be iustified. But even if the finding recorded by the learned Subordinate Judge about the petitioner s defence being highly unimpressive and having been put forth only with a view to delay the expeditious disposal of the suit, is held to be correct, there is hardly any justification for imposing the condition which the learned Subordinate Judge has imposed in this case. ( 5 ) THE principles that should guide the trial Courts while granting permission to defend the suit have been set out with utmost clarity in a recent judgment of the Punjab High Court in Naresh Chandra Mital v. Bishamber Nath, 1966 Delhi LT 352 (Punj- D) where my Lord the Chief Justice, then a Judge of that Court, observed: the Court has in exercising its discretion to keep in view the desirability of facilitating speedy decisions of suits upon bills of exchange, promissory notes and hundis and also to keel in view the drastic nature of the provisions contained in Rules 2 and 3 of Order 37 The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed iudiciously by the Court. In other words, the Court has to exercise judicial discretion, keeping in view the basic dictate of justice when determining the question whether or not to permit the defendant to contest the suit and if so whether unconditionally or on terms and what terms The idea of discretion, which Is always to be- exercised in a disciplined and responsible manner really represents a compromise between the idea that those who possess power should be trusted with free hand and not tied down to narrow and rigid groves and the competing notion that loose and unfettered discretion is dangerous weapon to entrust to any on including Courts. " ( 6 ) HAVING regard to the principles referred to above. I am of the view that the learned Subordinate Judge has almost prejudged the matters in controversy between the parties and has gone to the extent of ordering execution of the decree which may ultimately be passed against the petitioner. The condition imposed by him is onerous to a degree which almost forbids the petitioner from contesting the plaintiffs claim. The impugned Order is therefore modified to the extent that the petitioner is allowed leave to appear and defend the suit on the condition that adequate security is given by him for payment of the amount which may ultimately be decreed by the Court. ( 7 ) SINCE the order made by the learned Subordinate Judge has already resulted in delaying the disposal of the suit, the very evil which the learned Subordinate Judge was so anxious to prevent, I dircet the parties to appear before him on 10th August 1967 when the defendant would be called upon to furnish security to the satisfaction of the Court within ten days therefrom. Thereafter the case should proceed in accordance with law with utmost expedition. I may, however, mention that although the learned Subordinate Judge has expressed his views about the petitioner s defence in somewhat unqualified terms, I have no doubt that the petitioner s cast would be considered objectively, regardless of the tentative opinion already formed and expressed by him. ( 8 ) IN the circumstances of the case, although this revision petition is accepted there will be no order as to costs in this Court.