M.P. Thakkar, J.
1. A question which almost every day enters the door of the Court-room relating to the, true scope of Section 115 of the Code of Civil Procedure and the real content of the expression 'jurisdiction' employed therein, has presented itself in these two References made by P, D. Desai, J. The question has been raised in the context of an order passed by the learned Chamber Judge of the Ahmedabad City Civil Court under Rule 143 of the Ahmedabad City Civil Court Rules read with 0. 37 of the Code of Civil Procedure whereby the petitioners-defendants have been directed to deposit certain sums by way of security as a condition precedent to their being permitted to defend a suit on merits. The same advocates represent the Parties and the question involved is identical. Convenience therefore demands that both are disposed of by this common judgment.
2. It appears that there are a number of decisions in which conflicting opinions have been expressed on this question. That is why P. D. Desai. J., has made the reference to a larger Bench in order to set at rest the question which often arises before the Court. There appear to be three points of view- (1) Regardless of whether the order imposing condition for granting leave to defend is right or wrong, the High Court has no jurisdiction to interfere under Section 115 of the Civil Procedure Code; (2) That even if a tribal issue arises the High Court cannot interfere under Section 115 notwithstanding the fact that the trial Judge was wrong in taking the view that there was no tribal issue: and (3) That the High Court can interfere in exercise of its revisional jurisdiction only if the trial Court has not taken into account all the relevant facts or has passed the impugned order without proper application of mind.
3. Reliance has been placed on United Industries v. Dalwadi & Co., 9 Guj LR 873 = (AIR 1969 Guj 18) in support of the Proposition that even if the order passed by the trial Court imposing condition is wholly wrong in the sense that condition is imposed notwithstanding the fact that there is a triable issue and the defence is a bona fide one, the High Court cannot interfere. We, however do not read the decision in United Industries case as laying down the Proposition which according to counsel for the respondent it does. On a careful examination of the ratio of the decision, two propositions emerge- (1) that the Division Bench came to the conclusion on the facts of that case that the decision of the learned trial Judge imposing a condition was not erroneous and (2) that the High Court cannot interfere with the order passed by the trial Court imposing a condition for granting leave to defend unless there is a tribal issue or the defence betrays, lack of bona fides. We do not read the decision in United Industries' case as laving down that even if the defense discloses a tribal issue and even if it is bona fide, it is a matter of discretion with the learned Chamber Judge of the trial Court whether or not to grant leave to defend. It is no doubt true that the High Court has observed:
'This view taken by the learned Judge on a consideration of the plaint and affidavits may be correct or incorrect; it may even be whole wrong. That is not a matter into which this Court acting in exercise of its provisional jurisdiction can enter.'
In our opinion these observations refer to the nature of the condition imposed by the learned trial Judge and not to the question as to whether or not the condition should have been imposed. Besides, the present problem was never brought before the-Division Bench and the Division Bench has decided the Revision Application on the facts of that particular case upon forming the opinion that the learned trial Judge was right in taking the view that it was a matter where the condition of depositing Rs. 4,000/- was rightly imposed. Says the Division Bench at the end of the paragraph 5 'though we may point out that on a consideration of the Plaint and the affidavits, we are satisfied that the learned Judge was right in granting to the defendants leave to defend the suitor condition of depositing Rs. 4,000/-.' Since the decision of the Division Bench is built on the aforesaid circumstance, namely that on merits the High Court concurred with the view taken by the learned trial Judge, it is not possible to hold that the aforesaid observations regarding the provisional jurisdiction constitute a decision on an issue which was directly raised before the High Court. In any view of the matter, therefore, it is not possible to accede to the argument that the High Court can never, interfere under Section 115 of the Civil Procedure Code even if the trial Court has imposed a condition for leave to defend in a case where there is a triable issue and the defence is bona fide.
4. Our attention was next called to the decision rendered by V. R. Shah, J. in Civil Revision Application No. 1086 of 1968 decided on February 12, 1969 (Guj) (unreported). In that case V. R. Shah. J., came to the conclusion that the facts pleaded in the affidavit by the defendant did disclose a tribal issue. The learned Judge further held that the trial Court was in error in Proceeding on the assumption that there was no tribal issue. Even so the learned Judge came to the conclusion that the High Court has no power to correct the error inasmuch as the order imposing condition had no relation to the jurisdiction of the Court and that the learned trial Judge had jurisdiction to pass the order in his discretion. In this view of the matter V. R. Shah, J. refused to act in exercise of the provisional jurisdiction notwithstanding the fact that the learned Judge was firmly of the opinion that a tribal issue was raised. The learned Judge sought support from the observations made by the Division Bench in United Industries case. 9 Guj LR 873 = (AIR 1969 Guj 18) (Supra). In our opinion the learned Judge read in the decision of the United Industries a proposition, which was not, laid down by the Court. We have already dealt with the decision of United Industries case and have come to the conclusion that there is nothing in the said decision which justifies the view which V. R. Shah, J. has taken. Besides, with respect to the learned Judge it is not right to say that the order imposing condition does not have any relation to the question of jurisdiction. We will presently show that the question of imposing a condition where there is a tradable issue and where the defiance is bona fide. Certainly impinges on the jurisdiction of the Court and that every such order has relation to the question of jurisdiction. The learned Judge was also not right, saying so with respect in taking the view that it was a matter of discretion of the trial Judge. Once the defense discloses a tradable issue and once the Court comes to the conclusion that the defendant is acting in good faith, no discretion is left in the Court at all but to grant unconditional leave. Surely it is not a matter of the discretion of the learned trial Judge to hold that there is no triable issue even though ex facie there is one? So also it is not a matter of discretion of the trial Court to hold that the defence is not bona fide even though there is nothing on record to evidence lack of bona fides? His discretion a-rises only at the stage when he comes to the conclusion that the defence pleaded by the defendant does not raise a triable issue and that it lacks in good faith. When he comes to this conclusion he can impose such condition as he may deem fit in exercise of his judicial discretion having regard to all the circumstances including the one as regards the resultant hardship to the defendant. Be it realised that even there the learned Chamber Judge has no arbitrary power to impose 'any' condition: be has merely power to impose such condition as the facts and the situation of the case in question disclose. We are therefore unable to agree with the view taken by V. R. Shah, J.
5. Subsequent to the decision rendered by V. R. Shah. J a number of matters came before different single Judges of this High Court. And in these matters the High Court has taken the view that it is open to the High Court to interfere in exercise of its provisional jurisdiction in a given situation.
6. The first in this line of decisions is the decision rendered in B. Kardibhal v. Mohanrai Raiendrakumar, 11 Guj LR 140 - (AIR 1970 Guj 32). It appears that in that case the learned trial Judge had imposed a condition without coming to the conclusion as to whether or not the defence disclosed in the affidavit filed by the defendant was a good or plausible deface. Nor had he formed the opinion that the defence was lacking in bona fides. Under the circumstances. J. M. Sheth, J. set aside the order impiously the condition and allowed the Revision Application. The view taken by J. M. Sheth. J., to some extent is in conformity with the view expressed by us whilst discussing the ratio of the Division Bench decision In United Industries case, 9 Guj LR 873 (AIR 1969 Guj 18) namely that it is not correct to say that even if there is a tribal issue and bona fide defence the trial Judge can impose a condition for arranging leave to defend. It will be observed that J. M. Sheth, J. did allow the revision and did interfere in exercise of provisional jurisdiction of the Higah Court under Section 115 of the Civil Procedure Code in that case upon forming the opinion as stated earlier view therefore is that the provisional jurisdiction of the High Court can be invoked under those circumstances.
7. A similar question arose in Kachrabhai Ishwarbhai Patel v. Gopalbhai C. Patel, 13 Guj LR 975 = (ATR 1973 Guj 29). T. U. Mehta, J. has taken the view therein that if the order imposing a condition by the trial Judge shows that the order is arbitrarv and if it manifests non-application of the mind on the part of the learned trial Judge the High Court can interfere under S. 115 of the Code of Civil Procedure. He has taken the view that there is nothing in the case of United Industries which disables the Court from exercising its revisional jurisdiction in such circumstances.
8. The next decision cited, at the Bar is one rendered by S. H. Sheth J. in Civil Revision Application No. 861 of 1971 decided on September 22. 1971. The learned Judge empresses the opinion that the High Court would not ordinarily interfere in exercise of its provisional jurisdiction but it had power to interfere where the trial Court was guilty of no application of mind in regard to material aspect of the case and where miscarriage of justice was occasioned. He has also taken the view that there is no total bar to the exercise of revisional jurisdiction but that it can be exercised when the order passed, by the learned trial Judge manifests non-publication of mind.
9. A contrary view, however, has been taken by P. D. Desai J. in Civil Revn. Appln. No. 512 of 1968 decided on August 9, 1971 (Guj). The learned Judge felt that on a true reading (if the ratio laid down by the Division Bench in United Industries' case the High Court cannot interfere in exercise of its revisional jurisdiction, The learned Judge was of the opinion that the decision of T. U. Mehta, J. in Kachrabhai's case was erected on the peculiar facts of that case and that it was not possible to interfere with the order imposing condition in exercise of revisional jurisdiction even if the order was wholly wrong.
10. Now a new factor hag entered the equation with the enlargement of the concept of the expression jurisdiction. In M. L. Sethi v. R. P. Kapur. AIR 1972 SC 2379 a reference has been made to different nuances and dimensions of the expression 'jurisdiction'. The traditional concept of 'jurisdictions' has undergone a metamorphosis. The traditional view has been referred to as the primitive view as regards the concept of the exercise of sway. After quoting with approval the decision in Anisminic Ltd. v. Foreign Compensation Commission. (1969) 2 AC 147 and taking into account the observations of Lord Reid and Lord Pearce. Mathew, J. observed that the effect of the dicta in Anisminic's ewe is to reduce the difference between 'jurisdictional error 'and 'error of law within jurisdiction' almost to vanishing point. While considering the primitive concept and the Modern concept Mathew. J., has observed:
'Why is it that a wrong -decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res iudicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can on1v be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court.'
Therefore it is clear that the concept of jurisdiction as it obtained so far has undergone transformation and has now acquired an enlarged content. 'Jurisdiction.' refers to competence of the Court. The competence may be examined from the point of view of the pecuniary limits or territorial restrictions imposed by the statute or the limits as regards the subject-matter which may be engrafted by the statute. It may also arise on account of the erroneous decision in regard to the existence or non-existence of facts on which the jurisdiction of the Court is founded, that is to say the competence of the Court to enter upon the enquiry into the matter in question is founded. Whether or not the condition for the exercise of the Jurisdiction, in fact exists or not cannot be a question of ipse dixit of a Judge. The problem may be viewed in the context of the anatomy of summary suits. It must be realised that when a condition is imposed for granting leave to defend in such suits the Court shuts the door of inquiry on the merits of the dispute depending on whether or not the condition is complied with. Compliance with the condition imposed would open the door to an enquiry on merit. And failure to comply with the condition would bar the door to enter into the enquiry on merits as regards the dispute. When therefore a condition is imposed it acts as a fetter and precludes the enquiry on merits unless the party concerned is in a position to comply with the condition would be that a decree would be passed against the defendant not because the defendant is found to be liable to the plaintiff but because he does not have the resources to comply with the condition. It is misfortune of the defendant which gives rise to the decision and not the want of merit in his defence. The Court pronounces in favour of the plaintiff not because his cause is found to be just but because his opponent is in economic dig tress. The Court does not pronounce against the defendant because he is legal1y or morally liable but because he does not possess sufficient ready cash to enable him to comply with the condition imposed by the Court. The machinery of Court will then operate as an engine of oppression and not as a vehicle of justice. The question therefore deserves close and anxious scrutiny.
11. Now whether or not the defence in fact raises a triable issue and whether or not it is in fact bona fide-or otherwise, is surely not a question of exercise of discretion by the trial Court Nor is it a question on which the trial Court can hold any view It cannot be a matter of the ipse dixit of the trial Judge. What is material and relevant is not whether the trial Court 'believes' that there is no triable issue. What is material and relevant is whether there in fact exists a triable issue. What matters is not whether or not the trial Court 'believes' it to be mala fide. It depends upon whether or not in reality the defence is lacking in good faith. There is a distinct difference between the two. The existence or otherwise of triable issue and bona fides does not and cannot depend on the whim, pleasure or caprice of a Judge or an, oracular pronouncement made by him. It is not mala fide because the trial Judge says Therefore if the trial Court says otherwise, does a defence which in reality and truth discloses a triable issue and bona fide Plea become otherwise? And, will the High Court be obliged to pull down the shutters and place the blinkers on its eyes? Must the High Court refuse to see what it clearly sees? Again it is wholly wrong to say that it is a matter of discretion of the trial Court. Has the trial Court discretion to say that the de fence is mala fide and there is no triable issue even if it is otherwise? it would be irrational to say so. When it is said that the trial Court has discretion, it simply means it has discretion as regards the nature of the condition to be imposed. Certainly not as regards whether condition should be imposed or not. The trial Court has no such option or discretion (unless discretion is a synonym for whim and caprice) for if the defence raises a triable issue and it discloses bona fides, court must allow the defendant to establish it without placing hurdles in his way. If therefore it clearly appears on the affidavits and materials brought before the High Court that the defence does raise a triable issue and there is nothing to justify an inference of lack of bona fides, the order passed by the trial Court must be set aside. In as much as the order touches the question of the jurisdiction of the trial Court to adjudicate on merits on the dispute between the parties. When leave is refused the Court closes its door in the face of the litigant and does not enter into the merits of the dispute at all. By imposing a condition even though there is a triable issue and even though there is nothing to show lack of bona fides the trial Court deprives itself of the jurisdiction to adjudicate the dispute on merits after a proper trial and hearing. Having regard to the consequences of imposing an unwarranted condition, the jurisdiction of the Court to decide the main dispute on merits comes to, be sacrificed. It is therefore futile to contend that such an order has no relation to the question of jurisdiction or that it does not impinge on the question of jurisdiction. In our opinion, it has relation to the question regarding jurisdiction even in the context of the primitive view of the concept of jurisdiction. When however the concept has now become enlarged as recognized in the decision of the Supreme Court in AIR 1972 SC 2379 the matter is placed beyond the pale of controversy. It is necessary to realize that to take a contrary view would defeat the ends of justice for when an unwarranted condition is imposed by the trial Court notwithstanding the existence of a triable issue and notwithstanding that the defence does not lack in -bona fides, the defendant is left altogether helpless. It may be argued that he can file an appeal against the decree which may follow upon the failure to comply with the condition. This is however a matter of poor consolation having regard to the fact that the word I appeal is practically rendered ineffective as there is no evidence and no findings are recorded against the defendant which can be reversed. All that the trial Court has done is to pass a non-speaking order imposing a condition which carries the implication of want of triable issue or lack of bona fides or of both. It does not reflect any finding. What can an appeal Court do under the circumstances? It must also be realised that the purpose of a summary suit is not to convert an unsecured debt into a secured debt. The only Purpose is to ensure that if there is no triable issue and if the defence is lacking in bona fides-it should be made more unrewarding for him to prolong the matter. It is not possible to take the view that the Legislature ever intended to deprive the defendant to obtain decision on the merits of the case notwithstanding the fact that he has a bona fide defence which if he is allowed to plead, he may succeed. These are weighty circumstances which must be taken into account in pronouncing on the question whether or not an order imposing a condition touches the aspect regarding the jurisdiction of the Court. If two views are possible one which entitles the High Court to prevent miscarriage of justice and the other which renders the High Court helpless in setting aright the injustice, there is no compulsion on the Court to take the view which deprives itself of its power to do justice. To take such a view would be tantamount to the High Court cutting off its own arm which holds the scales of justice. If therefore two views are possible, the Court would, having regard to its anxiety to do justice, opt for the view which -promotes the cause of justice and pay homage to the God of substantial justice rather than for the view which disentitles the Court to redress the injustice and bows to the monster of technicality. In our opinion, having regard to the nature of the order passed by the trial Court every order imposing a condition touches on the question of the jurisdiction of the Court itself to adjudicate the dispute between the parties on merits and therefore a revision would lie to the High Court and the High Court can interfere in exercise of the Powers under Section 115 of the Civil Procedure Code. To say that the High Court has power to interfere is not to say that the High Court must interfere. Whether to interfere or not will depend on the facts of each case. If the High Court is of the opinion that an order imposing a condition has been passed notwithstanding the existence of a triable issue and notwithstanding the existence of a defence taken in good faith the High Court can, and indeed should interfere. Of course, it follows that the High Court can certainly interfere when an order manifests non-application of mind or when it appears that certain material aspects have been ignored, as has been held by S. H. Sheth, J. and T. U. Mehta, J. in the decisions referred to earlier.
12. We, therefore, answer the references in the above terms. The matters will now be placed for hearing before the learned single Judge who is assigned the work of this cost-so far There will be no order regarding costs so far as these References are concerned.
13. Order accordingly.