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2000 DIGILAW 882 (RAJ)

Lala Ram v. Basti Mal

2000-07-24

MOHD.YAMIN

body2000
Judgment Mohd. Yamin, J.- This is a revision against the order of learned Civil Judge (SD), Bhinmal dated 211.1994 by which he dismissed the applications of the defendants to grant them leave to defend the suit. (2). Briefly stated, plaintiffs filed a suit under Order 37 CPC for recovery of Rs. 18, 900/-against the defendants on the basis of a pronote alleging that the defendant No. 1 is the Karta of Joint Hindu Family while defendant No. 2 is minor and that defendant No. 1 took loan of Rs. 15,000/-for the legal necessity of Joint Hindu Family at Bagauda and executed a pronote. Learned District Judge, before whom the suit was originally filed, issued notices to the defendants in Form No. IV and the defendants put their appearance on 9.1992 i.e. within ten days of service of summons as the summons were served on them on 38.1992. Later on the suit was transferred to the learned Civil Judge because of change of jurisdiction. Notices were then sent to the defendants. Defendants No.1 and 2 filed applications for leave to defend stating that they were living separately and that the defendants No. 2 and 3 were minors and that defendant No.1 was carrying on his business at Mysore and that they were not members of Joint Hindu Family and that the sum, as alleged, was never borrowed nor pronote was executed and that the alleged thumb impression on the pronote was forged, that the plaintiffs were carrying on money lending business but they have not produced licence for money lending under the Rajasthan Money Lender’s Act. Affidavits were submitted to the effect that the applications for leave to defend could not submitted within ten days for reasons that the defendants were illiterate and that Bhoma Ram and Bandha Ram are the real sons of Lala Ram out of whom Bhoma Ram does not live in the village while Bandha Ram was living separately and that the pronote was forged one. An application alongwith affidavit on behalf of Lala Ram was filed on 21.1994 while a similar application on behalf of Bhoma Ram alongwith affidavit was filed on 8.4.1994 in which it was specifically mentioned that his notice was sewed on Lala Ram and that he was a major and was residing separately from his father and was carrying on his business at Mysore and that as soon as he knew about the suit he put his appearance in the Court and that the delay be condoned and he may be allowed to defend the suit. His affidavit in support of application was filed. These applications were contested by the plaintiff The learned Civil Judge dismissed the applications of the defendants and did not grant leave to defend. Hence this revision. (3). I have heard the learned Counsel for both the parties. (4). Learned Counsel for the petitioners submitted that the learned Civil Judge has committed material irregularity and illegality by not allowing the applications to leave to defend. The defendants had put appearance initially on 9.1992 through their advocate Ishwar Das and thereafter the suit was transferred to the Civil Judge. There are affidavits to the effect that the defendants were living separately and one of them had gone to Mysore in connection with his business. These affidavits have not been controverted by the plaintiffs. (5). The pronote as it is available on record shows the thumb impression of defendant Lala Ram only and mentions that the amount was advanced for the business running at MySore. The case of the defendants is that they are not the members of Joint Hindu Family and that defendant No. 1 Lala Ram’s thumb impression has been forged on the pronote. The pronote also mentions the witness of Nand Soni, therefore, there are many triable issues in this matter. In Mahanth Ram Das v. Ganga Das AIR 1961 SC 882 ., it has been held that Sec. 148, 149 and 151 clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension. In the present case I am of the view that the learned Civil Judge (SD) committed illegality in not granting leave to defend to the defendants as the defendants had appeared within ten days. In the present case I am of the view that the learned Civil Judge (SD) committed illegality in not granting leave to defend to the defendants as the defendants had appeared within ten days. Of course they could not file application for leave to defend in time for the reasons mentioned in the affidavits which are not contravened by the plaintiffs, their defence is to be looked into. The settled law is that if the defence is even like a moon shine, opportunity should be given to defend. (6). In the facts and circumstances of this case I allow this revision petition and set aside the impugned order of learned Civil Judge and order that the defendants may be given an unconditional opportunity to defend the suit. No orders as to costs.