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2009 DIGILAW 10 (JK)

Hans Raj v. Jeet Ram

2009-01-03

VINOD KUMAR GUPTA

body2009
1. The petitioners have filed these two revision petitions against the order dated 16.08.2007 passed by the learned 2nd Additional District Judge Jammu, whereby leave to defend the suit under Order XXXVII Code of Civil Procedure has been granted unconditionally. 2. The petitioners-plaintiffs have filed two separate suits under order 37 of Code of Civil Procedure against the defendant-respondent for recovery of the different amounts alongwith the interest @ 12 per cent per annum on the basis of different Hundies executed by the defendant-respondent. The defendant-re- spondent applied to the court seeking leave to defend the suits on the ground that triable issues arise in the suit and the leave was granted by the learned 2nd Additional District Judge Jammu unconditionally by the impugned orders. 3. I have heard the learned counsel for the parties and have perused the record on the file. 4. Order 37 of Code of Civil Procedure is a self contained code and the suits for the recovery of a debt on the basis of documents described in Rule 1 are covered under order 37 of Code of Civil Procedure and these suits are to be tried summarily. The defendant in such suits is not entitled to defend the suits unless he enters in appearance and granted permission to defend the suits in accor- dance with the procedure prescribed under rule 3 of order 37 of the CPC. Such suits are tried under summary procedure with an object to a bridge the proceed- ings providing the disposal of the suit rapidly. When the defendant enters an appearance and is summoned for judgment in the form prescribed he has a right to move the court seeking leave to defend the suit after disclosing the grounds on which his prayer is based. If substantial defence is disclosed by the defendant and seems to be bonafide, the leave should be granted. 5. In the instant case, the defendant in both the suits have sought leave on the ground that the promissory notes on which the claim has been based have not been executed by the defendant but are forged, and the promissory notes are insufficiently stamped and the suit is liable to the dismissed on this ground. It is also alleged that the promissory notes are without consideration. The plaintiffs-petitioners have objected the grant of leave on the ground that no substantial defence has been raised by the defendant. It is also alleged that the promissory notes are without consideration. The plaintiffs-petitioners have objected the grant of leave on the ground that no substantial defence has been raised by the defendant. 6. The first defence raised by the defendant in the case is that the promissory notes are false and frivolous besides insufficiently stamped and as such are inadmissible in evidence. The learned counsel for the respondent has submitted that the promissory notes in the case are insufficiently stamped as such the same are admissible. From the perusal of the record, it appears that the promissory notes in question have a stamp duty of rupee one instead of rupees two. The learned counsel for the petitioner has submitted that due to over-sight the other leave of stamp duty could not be produced at the relevant time and the same have been produced in the court afterwards as such the promissory notes are duly stamped. From the perusal of the photo copies of the other leaves of alleged promissory notes it appears that the petitioner has produced six copies of Hundi stamps with an endorsement that attached with Hundi of Rs. four lacs. These also bear the signatures showing that Jeet Ram-respondent has signed the same. From the perusal of the files of the trial court, it appears that all promissory notes are not of Rs. four lacs in both the cases. The learned counsel for the respondent has also submitted that the promissory notes on which the suits have been filed are inadmissible in evidence and cannot impounded even under section 35 of J&K Stamps Act. On the other hand, learned counsel for the petitioner has disputed this assertion on the ground that the promissory notes can be impounded. While dealing with this revision petition this court is not supposed to decide this issue because it will affect the merits of the case. However, it can be said on these assertions that a disputable question arises in the suits on this count. 7. The other point on which the defendant-respondent has sought leave to defend the suits is that the promissory notes are forged one and are without consideration. This is also a triable issue which requires to be adjudicated upon by the court. 8. 7. The other point on which the defendant-respondent has sought leave to defend the suits is that the promissory notes are forged one and are without consideration. This is also a triable issue which requires to be adjudicated upon by the court. 8. The claim of the defendant-respondent and the grounds of defence available to him in the suits under order 37 of the CPC cannot be taken away on the ground that the defences taken by the defendant are non-existent and irrelevant, if triable issues arise in the case. The defences taken by the defen- dant-respondent in these cases cannot be said to be malafide, without basis, frivolous or vexatious. In these suits, triable issues arise out of the defence taken by the defendant which requires proper adjudication by the court, thus leave shall not be refused. 9. For the foregoing reasons, it is held above that triable issues arise in the suits as such the defendant is required to be granted the permission to defend the suits under Rule 3(5) of the Code of Civil Procedure. Thus the trial court in these cases has rightly exercised his power by granting leave to defendant and the order of the trial court is perfectly valid and under the provisions of law. 10. Accordingly, both the revision petitions are dismissed because the orders passed by the trial court are legal, proper and the trial court has not exceeded its jurisdiction.