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S. Amrik Singh Vs. S. Jagjit Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Petn. No. 345 of 1952
Judge
Reported inAIR1955P& H101
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rule 3 - Sections 115
AppellantS. Amrik Singh
RespondentS. Jagjit Singh and anr.
Appellant Advocate A.N. Grover, Adv.
Respondent Advocate Gurbachan Singh,; J.L. Bhatia and; Jagjit Singh, Adv
DispositionApplications dismissed
Cases ReferredK.R. Kesavan v. The South Indian Bank Ltd.
Excerpt:
.....as revealed in the affidavit filed by him is not a very good one and there are doubts about his 'bona fides' leave may be given subject to conditions,.mr. it is merely a direction given by the courts as to the manner in which such discretion must be exercised, and it is well-settled law that if discretion given to a court is exercised wrongly then no revision petition would lie to the high court. the revision petitions of the two defendants therefore must fail. i may observe here that the conditional leave given in the other suit was given in somewhat similar, though not identical, circumstances, and in that case the learned judge took the view that it could not be said that the defence raised would make out a good case for the defendant. i have already discussed the matter above and..........furnishes security......'.4. in deciding the matter before me i have not to consider whether the learned trial judge exercised his discretion wrongly. it may be that when this matter comes up in appeal the view taken by this court will be that the defendant should have been allowed unconditional leave to defend the suit, but sitting on the revision side the question primarily is whether a revision petition is competent- at all. this is a much narrower issue, and on this -point i have no doubt at all that the petition does not lie because it seeks to challenge the exercise of discretion vested by law in the trial court. the revision petitions of the two defendants therefore must fail. i may observe here that the conditional leave given in the other suit was given in somewhat similar,.....
Judgment:
ORDER

Khosla, J.

1. These four revision petitions have arisen out of two suits on the basis of negotiable instruments. The four revision petitions constitute a set of cross-revision petitions in the two suits. An application was made by the defendants in the two suits under Order 31, Civil P. C., praying for permission to defend the suits. Permission was granted on condition that the defendants deposit the amounts claimed or furnish security within a period of one month. The defendants have moved this Court on the revision side, and the prayer in their revision petitions is that the condition imposed by the trial Court should be abrogated. On the other hand the plaintiffs have also filed revision petitions in which the prayer is that the permission to defend the suit should not be granted in the circumstances.

2. A preliminary objection was taken to the two revision petitions filed by the defendants on the ground that no revision petition lay to this Court against an order of this type. Reliance was placed on a decision of the Lahore High Court in -- 'Lala Manohar Lal v. Nanhe Mal Sanwal Das', AIR 1938 Lah 548 (A), in which this point was directly considered by Addison and Abdul Rashid JJ. The learned Judges took the view that an order passed by a Court under Order 37, Rule 3 giving leave to defend conditionally is an Interlocutory order and does not amount to 'a case decided' within the purview of Section 115 so as to be open to revision.

The learned Judges, however, went further than holding that this was not 'a case decided' and their decision was based on the additional consideration that even if this order were assumed not to be an interlocutory order the appellate court Would not, interfere sitting on the revision side, because the trial Court cannot be said in the circumstances to have acted illegally or with material irregularity in the exercise of its discretion. Upon these two grounds the learned Judges held that no revision petition lay against an order granting leave to defend a suit under Order 37, Civil P. C., upon certain conditions.

This is the only ruling which is directly in point, and Mr. Grover, who appealed on behalf of the petitioners, argued that this decision was based on an earlier decision which interpreted the provisions of Section 115, Civil P. C.. and that that ruling had since been dissented from in a subsequent Pull Bench Decision of the Lahore High Court. But the point considered in those two cases was what was 'a case decided', and as I have indicated above the 'ratio decidendi' of AIR 1938 Lah 548 (A) was two-fold, namely that the order of the trial Court did not amount 'to a case decided' and also that the re visional Court could not interfere because the trial Court had full jurisdiction to exercise its discretion and even the wrong exercise of discretionary power could not be questioned by a revisional Court.

3. There are two other cases which are in point. The matter came up before the Punjab High Court in--'S.S. Bazaz v. Ishar Das Wadhwa', AIR 1950 EP 247 (B), and in this case a Division Bench took the view that leave to defend a suit under Order 37. Civil P. C., must be granted if the defence raises triable issues. in that case the learned Judges took the view that the defenceraided did contain triable issues and the learned Judges granted leave to delend but upon conation that the defenuants rurnish security within a period of two months, in another case, which came up before myself and Harnam Singh J., --'Jwala Bank Ltd. v. Habib Ahmed', AIR 1952 Punj 296 (C), I expressed the same view. The following observation appeal's towards the end of this judgment:

'Indeed some Courts have taken the view that where the defence set up entitled the defendant to succeed the Court has no discretion and must grant leave unconditionally. I would perhaps not go so far, but it seems to me clear that where the defendant makes allegations which if proved by evidence would be sufficient to defeat the plaintiff's claim, leave must be granted to him, whether unconditionally or upon conditions. It will depend in any particular case whether any conditions should be imposed and it so what conditions. If the Court feels that the defendant has a good case and the defence is a bona fide' one leave may be given unconditionally. If on the other hand the defendant's case as revealed in the affidavit filed by him is not a very good one and there are doubts about his 'bona fides' leave may be given subject to conditions,.....'

Mr. Grover has argued that the question of 'bona fides' really does not enter into the matter and that while deciding whether leave should be granted or not the only point which the Court must consider is whether there are triable issues or nut, and if the defence raised is a plausible one and not what is usually called sham, the Court must give unconditional leave. In support of this argument Mi. Grover cited -- 'K.R. Kesavan v. The South Indian Bank Ltd.', AIR 1950 Mad 226 (D). This was a somewhat peculiar case. The trial Court took the view that the defence was not 'bona fide' and upon that ground granted leave conditionally. The matter went up in appeal to a Division Bench of the Madras High Court, and the learned Judge who delivered the judgment discussed the question of 'bona -fides' at great length, but in the end came to the conclusion that the defence raised by the defendant in that particular case had raised no real issues so as to entitle him to unconditional leave to defend.

The learned Judges laid down the criterion that the defence must be sham and not merely 'mala fide'. In coming to this conclusion the English law on the subject was referred to and followed. Order 14 of the Annual Practice followed by the British Courts is very much in the same terms as Order 37, but it seems to me that this Madras case is not an authority for the view that the question of 'bona fides' does not enter into the matter at all, for we find that this discussion went beyond the point which the learned Judges were called upon to decide. The decision in fact was that in that particular case the defence did not raise any triable issues and the decision of the trial Court was affirmed. I am more inclined to follow the views expressed by the two Division Benches of this Court.

Indeed in so are as these two decisions apply to the present case I am bound to follow them, and it seems to me that the trial Court has a discretion given to it by law whether to impose 'condictions or not. This discretion must be exercised in a judicial manner, but I do not think it can be said categorically that the hands of the Court are tied and that only in those cases can conditions be imposed where the defence seems to be a sham one. The wording of Order 37 is not 'susceptible of such interpretation and in interpreting statutes the plain meaning of the words must be given lull effect to. I rind no ambiguity in the wording and I cannot hold that this wording means that the Court has no discretion.

It is quite another matter to say that in law or in practice the Courts must exercise their jurisdiction in a certain manner that where the defence is a sham one ordinarily conditions may be imposed but that where the defence is not a sham one but may be a 'mala fide' one unconditional sanction must be given. This, however, does not mean that the discretion of the Court has been taken away. It is merely a direction given by the Courts as to the manner in which such discretion must be exercised, and it is well-settled law that if discretion given to a Court is exercised wrongly then no revision petition would lie to the High Court. In this case I find that the trial Court came to the conclusion that although the defence contained in the written statement of the defendant did raise triable issues, there were grave doubts regarding his (defendant's) 'bona rides', that is about the 'bona fides' of his pleas. The learned Judge went on to discuss the various defences urged and with regard in one of these defences, namely the question of jurisdiction, the trial Judge observed:

'The question of jurisdiction also has 'prima facie no force'.

Concluding the learned Judge observed-

'For the foregoing reasons, I am of the opinion that although the defendant has raised triable issues in the case yet on the whole I feel grave doubles about the 'bona fides' of his defence and so following the principle enunciated in -- 'AIR, 1052 Punj 206 (C) I grant leave to the defendant to appear and to defend the suit on the condition that he furnishes security......'.

4. In deciding the matter before me I have not to consider whether the learned trial Judge exercised his discretion wrongly. It may be that when this matter comes up in appeal the view taken by this Court will be that the defendant should have been allowed unconditional leave to defend the suit, but sitting on the revision side the question primarily is whether a revision petition is competent- at all. This is a much narrower issue, and on this -point I have no doubt at all that the petition does not lie because it seeks to challenge the exercise of discretion vested by law in the trial Court. The revision petitions of the two defendants therefore must fail. I may observe here that the conditional leave given in the other suit was given in somewhat similar, though not Identical, circumstances, and in that case the learned Judge took the view that it could not be said that the defence raised would make out a good case for the defendant. In this case too, therefore, it was purely a matter of the exercise of discretion given to the Court by law.

5. These two petitions must therefore be dismissed, but in the circumstances of the case I make no order as to costs. The defendants will be allowed one month's time (as ordered by the trial Court) with effect from today to furnish security for the amount claimed.

6. In the two cross-revision petitions the prayer is that the leave should not be granted. I have already discussed the matter above and since the view taken is that the defences do raise triable issues, these revision petitions must also fail and are dismissed. The parties are directed to appear before the trial Court on 21-5-1953.


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