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1978 DIGILAW 534 (MP)

Radhaballabh v. Prabhudayal

1978-07-06

H.G.MISHRA

body1978
Short Note : 1. This is a revision filed by the defendant-applicant against order dated 1.2.1978 passed by Civil Judge, Class-I, Morena ordering furnishing of security by the defendant-applicant in a suit under Order 37, Rule 1 CPC. 2. Facts essential for purposes of this revision are as under:- That the plaintiff-non-applicants Nos. 1 and 2 have filed a suit under Order 37, Rule 1 CPC for recovery of sum of Rs. 6,000 advanced on the basis of two hundis to the defendant and recovery of interest due thereon. The trial Court issued summons in form No. 4 vide Index B. After service, the defendant put in appearance and filed an application for grant of leave to defend the suit and that he never executed any of the hundis and that hundis are forged and fabricated documents. This application was opposed but leave to defend the suit was allowed to the applicant on the condition of furnishing security for an amount of Rs. 10,000. Aggrieved by this order the present revision has been filed. 3. Similar point had cropped up before me in Civil Revision No. 174 of 1978 Vimalchand S/o Jawaharlal Jain vs. Maheshchand S/o Dwarka Prasad and Others. It was held in that case by me that in such a case condition of depositing the amount sued for in cash or furnishing of security cannot be ordered but instead term for regulating the mode and time of trial can be imposed by the trial Court. The principles governing the situation are as follows: (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-fied 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. (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, 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 a payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moon-shine 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 moon-shine 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. (f) Leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious. (g) Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. 4. The present case falls in principle (c) stated above. 5. (g) Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. 4. The present case falls in principle (c) stated above. 5. Accordingly the revision is allowed and the impugned order is set aside and instead it is directed that leave to defend is allowed subject to condition that the trial will be completed within three months from the date of filing of the written statement by the defendants and the mode of trial will be by filing affidavit of the parties and their witnesses and that the parties will keep themselves of their witnesses in attendance in the Court on the date to be given by the trial Court for the purposes of their cross-examination by each other. The parties are directed to appear the trial Court on 20.7.1978 on which date the Court will fix the date for filing written statement by the defendant and thereafter will try the case within time and according to the mode indicated above. In view of the facts and circumstances of the case I make no order as to costs of this revision. Copy of this order be sent to the trial Court before the aforesaid date. Revision allowed.