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Madhya Pradesh High Court · body

2000 DIGILAW 1235 (MP)

Kamla Prasad Chourasiya v. Pravin Kumar Jain

2000-11-21

DIPAK MISRA

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ORDER 1. Invoking the extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of order dated 31.3 .89 contained in Annex. P. 5 2. The facts as have been unfurled are that the petitioner is a Lime Mine Contractor having lime kiln near Bamhani Banjar Distt. Mandla. The non applicant No.1 used to purchase lime from the petitioner from time to time on credit and used to make payment thereof after some time. As the petitioner and respondent No.1 had good relations, the respondent No.1 for the purpose of supplying of lime to some government departments requested the petitioner to sign some papers with a view to submit the tenders which the petitioner did in good faith. In course of business transaction as the respondent No. 1 did not pay the dues of the petitioner for a considerable length of time the petitioner demanded the same. While this back ground existed the respondent No.1 instituted a summary suit against the petitioner under order 37 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for realisation of Rs. 17,200/- alleging that the petitioner had borrowed an amount of Rs. 10,000/from him which was paid by cheque No. 6027851 in the name of Union Bank of India, Jabalpur Branch and the petitioner executed a receipt thereof in favour of respondent No.1. The petitioner denied the aforesaid allegations and stated that an amount of Rs. 10,000/- was paid in cash towards the dues on account of the price of lime and after adjusting the aforesaid amount Rs. 5489/still remained unpaid. It was also stated in the written statement that the suit under Order 37 was not maintainable and that the paper signed by the petitioner for submitting tenders to Government departments had been utilised by respondent No. 1 by preparing a false receipt. The petitioner filed an application under Order 37 Rule 3 (5) for permission to defend the suit. The learned trial Judge by order dated 20th January 1988 granted the permission to defend the suit. The petitioner filed an application under Order 37 Rule 3 (5) for permission to defend the suit. The learned trial Judge by order dated 20th January 1988 granted the permission to defend the suit. Against the said order the respondent No. 1 preferred a civil revision before the Court of Additional District Judge, Balaghat and the revisional Court by order dated 31.3.89 quashed the order granting leave to defend Being aggrieved by the said order the petitioner' has preferred the present writ petition. 3. It is averred in the writ petition that Order 37 applied to the suits based on Bill of Exchange, Hundis, Promissory notes, or to recover the debt on written contract or on enactment or on a guarantee as per provision of sub Rule (2) of Rule 1 of Order 37 but a suit of present nature is not covered under the laid order. It is also put forth that while granting leave the Court is to see whether the facts alleged by the defendants are such which entitle him to defend the suit. It is also stated that leave cannot be refused when there has been substantial defence to raise. 4. I have heard Mr. C.L. Kotecha for the petitioner and Mrs. S. Pandit for respondent No. 1. 5. Mr. Kotecha, learned counsel for the petitioner has contended that the order allowing the revision by the learned Additional District Judge is unsustainable as there is sufficient and substantial ground to raise a defence in the present matter. It is also put forth by him that the case of the petitioner comes within the guidelines which have been laid down by Apex Court and therefore, the revisional Court has fallen into error by reversing the order passed by the Court below. Mrs. Sudha Pandit, learned counsel for respondent No. 1 supported the order passed by the revisional Court. She also submitted that as the revisional Court has passed a reasoned order the same should not be lanceted in exercise of extra ordinary jurisdiction of this Court. 6. To appreciate the rival submissions raised at the Bar, I have perused the orders passed by the Courts below with utmost anxiety. She also submitted that as the revisional Court has passed a reasoned order the same should not be lanceted in exercise of extra ordinary jurisdiction of this Court. 6. To appreciate the rival submissions raised at the Bar, I have perused the orders passed by the Courts below with utmost anxiety. The learned trial Judge has opined that the petitioner who was the defendant in the Court below had applied for leave as per the terms and conditions of the Order 37 and there is a substantial defence to be raised and accordingly granted leave. The revisional Court did not find the defence taken was logical and bona fide. The revisional Court also observed that the reasons given by the learned Trial Judge are not cogent. Being of this view he has set aside the order. 7. To appreciate the whole scenario, it is apposite to refer to Order 37 Rule 1. It reads as under" "O. 37. Summary Procedure. Courts and classes of suits to which the order is to apply. 1. (1) This Order shall apply to the following Courts, namely:- (a) High Courts, City' Civil Courts and Courts of Small Causes; and (b) other Courts: Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the official Gazette; restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as. it deems proper. (2) Subject to the provisions of sub-rule (1), the, Order applies to the following classes of suits, namely (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising, (i) on a written contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principle is in respect of a debt or liquidated demand only:" 8. The scope and ambit of the aforesaid provision was dealt with by the Apex Court in the decision rendered in the case of M/s Mechalee Engineers and Manufacturers v. M/s Basic Equipment Corporation AIR 1977 SC 577 wherein their lordships approved the principles laid down in the case of Smt. Kiranmoyee Dassi v. Chatterjee, (1945) 49 Cal WN 246 and reiterated the same. To quote their lordships: "In Smt. Kiranmoyee Dassi V. Dr. J. Chatterjee (1945) 49 Cal WN 246 at p. 253 Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37 CPC in the form of the following propositions (at p. 253): "(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 had 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 Judmgnet and the defendant is not entitled to leave to defend. (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 Judmgnet 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." 9. In this context I may profitably refer to another decision rendered in the case of Mrs. Raj Duggal v. Ramesh Kumar Bansal AIR 1990 SC 2218 wherein it has been held as under: "Leave to defend the suit brought under O.37 R. 2, CPC is declined where the Court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the• defendant are established there would be a good or even a plausible defence on those facts. If the Court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to corss-examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he has a bona fide defence, he ought to have leave. Summary judgments under Order 37 should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises. The Court should not reject the defence of the defendant merely because of its inherent implausibility or its inconsistency." 10. The present factual matrix has to be tested on the touch stone of aforesaid enunciation of law. The Court should not reject the defence of the defendant merely because of its inherent implausibility or its inconsistency." 10. The present factual matrix has to be tested on the touch stone of aforesaid enunciation of law. If the principles laid down in the aforesaid decisions are applied in proper perspective, I am of the considered opinion the defendant has an acceptable defence and has raised a triable issue. It is not a case where it can be said that the defendant has not disclosed such facts which are sufficient to entitle him to defend. Considering from all aspects, I am of the view the leave should have been granted to the defendant and the learned trial Judge had correctly granted leave and the revisional Court committed an error by reversing the order passed by the trial Court. 11. In the result, 1the order passed by the revisional Court is set aside and that of the trial Court is restored. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.