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Firm New Afghan Co. and anr. Vs. Firm Sadhu Singh Thakor Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Rev. No. 801 of 1960
Judge
Reported inAIR1962P& H168
ActsConstitution of India - Article 227; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantFirm New Afghan Co. and anr.
RespondentFirm Sadhu Singh Thakor Singh and ors.
Cases ReferredSee Hari Singh v. Moni
Excerpt:
.....been placed on a decision of the supreme court in santosh kumar v. union of india, air 1961 punjab 60, and it is submitted that a discretion unless judicially exercised in accordance with the well-recognised rules in liable to be interfered with on appeal or revision. the impression created on the mind of the court to induce it to put the defendant on terms is, however, always tentative and in the present case it may be easily removable by reliable evidence to be led in the case......subordinate judge first class, amritsar, dated 16th december, 1960, by means of which he granted leave to defendants nos. 1 and 2 to defend the suit on furnishing security within one week from the date of the order. it is contended on behalf of the learned found that the defence on behalf of defendants nos. 1 and 2 raise a triable issue, the court below had no discretion except to grant leave unconditionally and that the order imposing terms deserves to be quashed and set aside. in support of this contention strong reliance has been placed on a decision of the supreme court in santosh kumar v. mool singh, air 1958 sc 321. reference by the counsel has also been made to santokh singh v. siri ram, air 1955 punj 47, union of india v. m/s. natabarlal gayashankar, air 1956 orissa 65, waman.....
Judgment:
ORDER

(1) This revision is directed against the order of a learned Subordinate Judge First Class, Amritsar, dated 16th December, 1960, by means of which he granted leave to defendants Nos. 1 and 2 to defend the suit on furnishing security within one week from the date of the order. It is contended on behalf of the learned found that the defence on behalf of defendants Nos. 1 and 2 raise a triable issue, the Court below had no discretion except to grant leave unconditionally and that the order imposing terms deserves to be quashed and set aside. In support of this contention strong reliance has been placed on a decision of the Supreme Court in Santosh Kumar v. Mool Singh, AIR 1958 SC 321. Reference by the counsel has also been made to Santokh Singh v. Siri Ram, AIR 1955 Punj 47, Union of India v. M/s. Natabarlal Gayashankar, AIR 1956 Orissa 65, Waman v. Firm Pratapmal Dipaji and Co., AIR 1960 Bom 520, and P. S. Kaicher v. Union of India, AIR 1961 Punjab 60, and it is submitted that a discretion unless judicially exercised in accordance with the well-recognised rules in liable to be interfered with on appeal or revision.

In this connection emphasis has also been laid on the fact that in Santosh Kumar's case, AIR 1958 SC 321, the trial Court had also granted leave to defend the suit on the condition of the defendants giving security to the extent of the suit amount and the cost of the suit. This order was sought to be reviewed unsuccessfully and then the aggrieved defendant approached the High Court at Delhi under Article 227 of the Constitution but without success. On special leave appeal having been filed in the Supreme Court, the orders both of the High Court and of the trial Court were modified and the case was sent back to the first Court for trial of the issues raised by the defendant without any security.

(2) On behalf of the respondents, however, it is contended with the equal vehemence that on reading the written statement of defendants Nos. 1 and 2, it is obvious that the defence is not bona fide. It is also contended that these two defendants being men of means, merely because they are directed to give security for the amount of the suit, which is Rs. 3,100/- only, there is no grave or irreparable injury caused to them and that the order being substantially just this Court should not interfere on revision.

It is further contended that in the case before the Supreme Court the was for Rs. 60,000/- and therefore to impose the condition of furnishing security for that amount along with the costs of the suit might have made the leave to defend illusory or sham; such, according to him, is not the case in the present revision.

(3) I have bestowed most anxious thought to the facts of the case and the arguments addressed at the Bar. It is true that in Santosh Kumar's case, AIR 1958 SC 321 the Supreme Court did actually interfere with the order of the High Court passed on a petition under Article 227 of the Constitution refusing to interfere with the order of the Court of first instance, and to that extent it may support the argument that the Court exercising the power of revision is competent, in a fit and proper case, in interfere with the discretionary order of the Court of First instance.

In the present case, however, what I find is that defendants No. 1 and 2 have pleaded that they gave the cheque in dispute to the plaintiff by way of loan and that when the plaintiff threatened to adjust the amount of this cheque in some other disputed transaction, payment of the cheque was stopped. It is on this basis that the cheque is pleaded to be without consideration. In these circumstances, the order that defendants Nos. 1 and 2 should furnish security for the amount of the suit before they defend it cannot turn the leave to defend to something sham or illusory.

(4) Unlike Santosh Kumar's case, AIR 1958 SC 321 the amount of security in the case in hand is for a comparatively modest amount; an amount which the defendants on their own showing could and in fact did spare for advancing as a loan to the plaintiff. To require them to furnish security for this amount in a suit on the basis of a cheque admittedly drawn by them can thus scarcely be considered to convert the leave to defend into something illusory or sham.

(5) The Court below has also observed that the defence of defendants Nos. 1 and 2 cannot be said to be free from suspicion or doubt. It is true that this observation has been made--as it must obviously be only on general impressions of the Court and not on any evidence. It is argued that this observation is in direct conflict with the finding that the defence raise a triable issue. I do not think it is so. The Supreme Court decision in Santosh Kumar's case, AIR 1958 SC 321 does not in any way run counter to the proposition that a defence may raise s triable issue and yet may not prima facie impress the Court in view of the common course of human conduct. In such a case to refuse leave would certainly tend to lead to injustice; at the same time dictates of justice may demand that the leave to defend may be granted on some terms. The impression created on the mind of the Court to induce it to put the defendant on terms is, however, always tentative and in the present case it may be easily removable by reliable evidence to be led in the case. Without pursuing this matter any further it is enough for our purposes to say that the discretion exercised by the Court below on the facts and circumstances of this case cannot be described to be either contrary to any recognised rule of law or practice, or perverse or unjust.

(6) The exercise of the revisional power under section 115, Code of Civil Procedure is indisputably discretionary and when the impugned order does not disclose any grave injustice or irreparable injury and indeed does substantial justice between the parties, the power of revision should neither be invoked nor exercised: See Hari Singh v. Moni-ud-Din Khan, AIR 1944 Lah 397. Merely because this Court sitting on the original side may not have imposed the terms does not by itself justify interference on revision.

(7) In the light of the foregoing discussion, this revision fails and is hereby dismissed. There will, however, be no order as to costs. The security may be furnished within ten days from the re-opening of the Court below after the summer vacation.

(8) Revision dismissed.


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