1. All these revision application arise out of the order granting the petitioner conditional leave to defined in different suits filed against him by the different opponents of there revisions application in the Court of small causes at Ahmedabad. The claim made by each of the opponents in all these suits if for the amount of Rs. 2,000/-. The contention of every opponents is that he has paid Rs. 2,000/- to the petitioner as deposit for becoming a member of the proposed 'Sudhashu Co-operative Housing Society'. According to the opponents after the receipt,. of the these amount the petitioner file din forming the Society and also failed in purchasing any land for the proposed society. The opponents, therefore claim that the petitioner should refund the amount of deposit given by each of them. As against this, the main contention, which is raised buy the petitioner in all these suit is that each of the opponents had paid the amount of Rs., 2,000/- not as deposit, but as contribution towards the purchase of a land for the society. The facts of the case reveal that at an earlier stage the petitioner had entered into a 'Banakhat' under which he had paid an earnest amount of Rs. 15,000/- The petitioner, has, therefore, raised a contention that the payment of Rs. 2,000/- made by the each of the respondent was a contribution towards the amount of Rupees 15,000/- which he has paid toward the 'Banakhat' and, therefore, the amount was not a liable to be returned.
2. In their rejoinder-affidavit the opponents have reiterated their contention that mount of Rs. 2,000/- paid by each of theme represented a deposit which was liable to be returned.
3. On these contentions, the leaned trial judge gave the petitioner a conditional leave to defend. The condition imposed by him in each case was that the petitioner should deposit the amount of Rs. 1,000/- within two weeks. It is against this order that the petitioner has referred these revision applications.
4. The question which arises to be determined in these application is whether, looking to the facts of the case, the leaned Judge of the trial Court was justified in imposing any condition at the time of granting leave to defend. the principles of the law which should guide the Court while granting leave to defend tin the cases government by the provisions of Order. 37, C. P. C. are, by now, well settled. If in such cases the defendant raises a triable issue which is also to bona fide than the Court is legally bound to grant to him an unconditional leave to defend. Imposition of a condition in case where a bona fide triable issued is raised to would obviously under the lave quire illusory and the would virtually amount to a pre refusal of leave to the defend. The position is, however, different where the Court find that though a particular plea. raised by the defendant prima face involves a tribunal issue, the same is raised purely for the purpose of delaying the proceedings of the suit, or where the circumstances of the case as revealed from the pleadings and others document procedure in the record point to the want of bona fides of the defendant. I such cases, though the Court may not with hold leave to defend, it may grant the said leave by making it conditional on depositing a particular amounts.
5. It is thus evident that the special jurisdiction of granting or refusing to the grant an unconditional leave to defend which a Court enjoys under Order 37, C.P.C. is dependent upon the finding on the question whether the defendant raises a bona fide triable issue. It need not a be emphasised that the procedure contemplated by Order 37, C.P.C. is a special departure form usual procure under the Code according to which every defendant has to a right to defiant his case in the manner best suited to him without begin fettered by any condition. This procedure is therefore, a very potent weapon in the hands of a Court to shut out frevolous defence which are raised in some commercial causes mainly with a view to protract the proceedings of a suit. But greater the potency of a weapon, the greater is required of the caution in handling the same. therefore, the Court is expected to be very careful in its determination of a jurisdictional question viz., whether the peal a raised by the defendant involves a bona fide triable issue or not. The decision of this question cannot be arbitrary, or inspired by a mere suspicion. It should find its justification form the facts and circumstances of each case as held by Supreme Court in Santosh Kumar v. Bahi Mool Singh, AIR 1958 SC 321 Court cannot reach the conclusion that the defence is not bona fide arbitrarily because is it as much bound by judicial rules and procedure in reaching a conclusion of this type as in any other matter. In its another decision given in Milkhiram (India) Pvt. Let., v. Chamalal Brothers, AIR 1965 SC 1698, the Supreme Court has warned that in such cases, care has to be take that the object of the rule to assist the expeditious disposal of commercial causes is not defeated and,. at the same time, real and d genuine triable issue are not shut out by unduly server orders as to deposit. It should also be noted that the jurisdiction of the Court to impose condition for leave to defend depends solely upon the finding whether the plea raised in defence is bona fide or not. In other words this finding is the one which involves a jurisdictional fact.
6. Now so far as the facts of this case are concerned, it can be shortly stated that while the main plea raised by the main plea raised by the opponents in the plaint is that the amount of Rs. 2,000/- which they seek to revere from the applicant-petitioner, was the amount of deposit liable to be refunded the peal raised by the petitioner is that the amount represented the contribution made by each of the opponents and as such, it was notable to be refunded. It is found that long with their paints, the opponents plaintiff have product receipts purporting be to the receipts of the dispute amounts of Rs. 2,000/-. These receipts clearly show that the suit amount of Rs. 2,000/- represented the contribution toward the purchase of land of the Society. The mount is described in these receipts at '(jaminfalana)' meaning 'contribution for land'. these receipts thus leaned prima facie support to the plea raised by the petitioner in his affidavit in answer to opponents suits, As against this, there is absolutely nothing in the record, except of course, the interested words of the opponents. to show that the dispute amount of Rs. 2,000/- was paid as 'deposit'. the petitioner has obviously raised tribal issue in his affidavit for lave to defend by contending that the suit amount of Rs. 2,000/- being an amount of the contribution towards the price of land to be purchased of the society is not liable to be refunded. One important test of a triable issue' is to find out whether the defendant would be able to resist the plaintiffs suit successfully if he proves his case. If the answer to this question is in the affirmative, the plea does involve a 'triable issue' . It cannot be gainsaid that in this case if the petitioner-defendant succeeds in proving the case se tout by him, he is likely to resist the opponents' suits very successfully. In may opinion, therefore there cannot be any doubt that the has raised a 'triable' issue' in all the suits.
7. If the petitioner had raise a triable issue, then the next question which would arise to be considered is whether this defence is not a bona fide one. while deciding this question this we have necessarily to confide out attention to the pleadings and other documents produced in the case,. This would be specially so when the learned trial judge and not given reasons in sport of his order. Now, looking to the pleading, I do not find anything to justify a conclusion that this defence is raised by the petitioner either for a sake of raising it or the sake of delaying the proceedings of the suit. There is absolutely nothing there in to suggested that this defence is not raised bona fide. On the contrary, the receipt which is produced along with the plaint gives some support to the peal raised by the defendant as noted above. Under the circumstances, it is found that the learned trial judge and absolutely on materials before him for coming to the conclusion that the defence raised by the petitioner lacked bona fides.
8. Shri Parikh, who appeared on behalf of the opponents, however contended that even if it is believed that the petitioner has raised a triable issue and that the was not lacking in bona fides in raising this triable issue, this Court has no jurisdiction under Section 115 of the civil Procedure Code to interfere with the such discretionary order passed by the trial Court. it was contended by Shri Parikh that it was for the trial Court to exercise its discretion by the reference to the record of the case and even if it is found that he has exercised this discretion erroneously, that would not invoke the revisional jurisdiction of the High Court and would not call for any interference. According to Shri Paeikh, clause (c) of Section 115 of the C. P. C. code which speaks about illegality or material irregularity, has reference only or jurisdictional fact and therefore, unless it is found that the error committed by the trial court results in the either want of exercise of jurisdiction or failure to exercise jurisdiction there would be no justification for nay interference by this Court. for this proportion, he has relied upon a decision of the Supreme Court given in Pandurang Dhondi Chougule v. Maruti Hari Jadhav, AIR 1966 SC 153, a Division Bench decision of this Court given in United Industries v. M/S Dalwadi and Co., AIR 1969 Guj 18, and unreported decision of V,. R. Shah, J. delivered on 12-2-1969 in Civil Revn Appln No. 1086 of 1968 (Guj).
9. If a reference is made to section 115 of the civil procedure Code, it will be fu d that it contemplates the interference by the High Court revision in the interference by types of case namely (1) cases in which the Subordinate Court appears to have exercised a jurisdiction not vested in it by law,(2) cases where the Subordinate Court has failed to exercise its jurisdiction so vested and (3) cases where the Subordinate Court is found to have acted under exercise of its jurisdiction 'illegally or with material irregularity' Now the trial Court had jurisdiction in this case to impose conditions of it for allowing the petitioner to defend only if it is found that the triable issue which the petitioner has raised is not raised bona filed and it raised merely with a view to delay the proceeding of the suits filed by the opponents. As stated above, the Court has jurisdiction to impose conditions only if it is found that the defence raised is not bond file. In other words, the jurisdiction is of the trial Court to impose conditions is dependents on it finding that the defence raised is not bona fide. This finding therefor involves a jurisdictional fact quire fact. Therefore it the trial Court is found to have decided this jurisdictional fact quire arbitrarily and without any justification whiter from the material placed before him , it can be successfully contended that by imposing a condition for leave to defend it has exercised jurisdiction which it did not possess.
A view similar to this was taken by the supreme Court in Roshan Lal v. Ishawar Dass, AIR 1962 SC 646. That was a case governed by the Delhi and Ajmer Merwars Rent Control Act, 19 of 1947. There was a finding of fact that the premises is question in all case were newly constructed. This finding was support by' abundant evidence which had been carefully considered and accept by the Rent controller and by the district Judge'. The Supreme Court held that High Court was in error in interfering whit this finding which found jurisdiction form the record. But while making these observation Supreme Court accepted the principal that the question whether the second follow of the promises was newly constructed or not was a jurisdictional fact on which depended the power of the Rent Controller to taken action, and that 'if the Rent Controller and wrongly decided this fact, and assumed jurisdiction where he had none, the matter would be open to reconsideration in revision'. In Chaube Jagdish Prasad v. Ganga Prasad, AIR 1959 SC 492, Supreme Court had an occasion to consider the scope of section 115, C. P. C.. It is held therein that if an erroneous decision of the subordinate Court result in its exercising jurisdiction not vested in it by law of failing to exercising jurisdiction so vested, or acting with material irregularity or illegality in exercise of the jurisdiction the case for the exercise of power of revision by High Court is made out. It is also observed in that case that if a subordinate Court decision a jurisdiction fact erroneously and thereby assumes jurisdiction not vested in it, then power of interference under Section 115, C. P. C. becomes operative.
10. Considering the facts of the case I find that the view of the leaned trial judgment that the defence raised by the defendant is not bona fide and, therefore imposition of the condition of a granting leave to defend is called for, is based on no material at all,. There is absolutely nothing in the record of the case to suggest, even in the most indirect manner, that the plea raised by the defendant-petitioner in this defence lacks bond fides, If, therefore, the conclusion of the trial Court is based no on material at all, then it cannot only amounts to a manifest illegality in the only exercise of the trail Courts. jurisdiction, but it also amounts to a wrong assumption of jurisdiction for a the purpose of imposing condition for leave to defend and the provisions contained in clause (c) of Section 115 of the civil Procedure Code do apply to the facts of the case. In this connection it would not be out of place to again refer in the decision given by the Supreme Court in Santosh Kumar, AIR 1958 SC 321. (supra) which it is observed that the trail Court cannot reach the conclusion that the defence is not bona fide arbitrarily and that the trial Court is a much bound by the medication rules and judicial procedure in reaching a conclusion of this kind as in any other mater. It need not to be emphasis that they conclusion as regard the existence of bona fides or mala fides of a particular plea without going to the merit of the case, cannot be reached in an arbitrary fashion. It must have some ground to the support it either in the pleading or in the circumstance of the case. It there are not such ground then the decision which is under challenged, cases to be a discretionary decision. The question of using discretion would obviously arise in case where tow alternative view of the possible. It cannot be said that such a decision amounts to a mere error because existence of error postulates a position wherein the view, which is called erroneous, it possible, But is cases where in there is absolutely no material to support a particular view that is not scope for any contention that the view she taken is erroneous' or incorrect'. the view which is merely arbitrate of fanciful is vitiated by the paten illegality and therefore result in exercise of jurisdiction not vested in law. such cases would therefore be governed by clause (a) and (c) of Section 115 of the Civil Procedure Code.
11. Shri Parikh however, put reliance upon the above referred supreme Court decision of Pandurang v. Maruti. this decision contains the following observation relating to the provisions continued in Section 115 of the Civil Procedure Code:
'The provisions of the Section 115 of the code have been examined by the judicial decision on several occasion. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, or even error of law, unless the said errors have relation to the jurisdiction of the Court of try the dispute itself. As clauses (a), (b) and (c) of Section 115 of the indicate, it is only in cause where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or acts in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conservable that points of law may arise in proceeding instituted before Subordinate Court which are related to question of Jurisdiction . It is well-settled that a plea of limitation of a peal of res judicata is a peal of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these plea in favour of the party raising them would oust the jurisdiction of Court, and so an erroneous decision on these pleas can be said to be concerned with the question of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the Subordinate Court which has no relation to question of jurisdiction of that Court, cannot be corrected by the High Court under Section 115'.
In this case the supreme Court was concerned with the construction of the decree and, therefore, the Supreme Court held that the question of construction of a decree had on relation to the jurisdiction of the Court putting on a particular constructions. The above quoted observation of the Supreme Court only reveal that a mere error of fact or law does not invite the revisional jurisdiction of the High Court under Section 115 of the Code, the but it would invite the said jurisdiction of the said error of fact of law which it considers had ultimately a reference to the jurisdiction of Court. To pur it in other, words, what the Supreme Court has conveyed is that if the error of the fact or law is such that eventually it would result in a jurisdictional question then the interference of the High Court would be called for. The question in the case before me is whether the Court finding about existence of was to bone fides on that part of the defendant in raising the peal that the amount of Rs. 2,000/- was not paid as a deposit, but as a contribution, towards the purchase of land, is based on any evidence at all. If there is not evidence justifying such a conclusion about the bona fides of the defence then obviously the decision of the lower Court would be arbitrary and every decision which is arbitrary is a decision which is arbitrary is a decision which results in illegality as well as wrongful assumption of jurisdiction. Thus, the decision of the Supreme Court on which reliance is placed by Shri Parikh has no application to the facts of this case.
12. Shri Parikh thereafter relied upon the following observation made by Shah J. In civil Revn, Appln. No. 1086 of 1968:-
'However, Mr. Vin, learned advocate for the opponent urged that this Court has no authority to revise the order of the learned trail Judge under Section 115 of the Civil Procedure Code. Mr. Vin's argument before me is that even if it were held that the learned trail Judge did not exercise his discretion properly, still this error has no relation to the jurisdiction of the trial Court and hence the order of the learned trial Judge cannot be revised under Section 115 of the Code. As laid down by the Supreme Court in AIR 1966 SC 153, the High Court has power only to correct such errors of law ass have relation to the jurisdiction of the Court. It has also been held therein that the High Court has no power to rectify all those errors of law or irregularities which has no relation to the jurisdiction of the Court. Since the learned trail Judge has jurisdiction, to pass an order in his discretion and he passes an order in exercise of his discretion, which may not be a proper order, still the order passed by him is within his jurisdiction and no jurisdictional fact is involved in that order.'
These observations are also not found helpful to the opponents-plaintiffs for the simple reason that in the case before me the finding of the lower Court is found to be totally baseless and rests merely on arbitrariness and surmises. I have already quoted above the relevant observations of the Supreme Court in AIR 196 SC153, on which Shah J. has put reliance and have shown how the error committed by the lower Court is with regard to a jurisdictional fact.
13. Shri Parikh drew my attention to a Division Bench Judgment of the Court given in AIR 1969 Guj 18, Wherein following observations are made:-
'It appears clearly that the learned Judge of the city Civil Court on a consideration of the plaint and the affidavits, was not satisfied that a bona fide triable issue was raised by the affidavits in reply and entertained a doubt as to the genuineness of the defence and he, therefore, did not grant unconditional leave to defend the suit but granted leave to defend subject to the condition of depositing Rs. 4,000/- as security towards the plaintiffs' claim. This view taken by the learned Judge on a consideration of the plaint and affidavits my be correct of incorrect. It may even be wholly wrong. That is not a matter into which this Court acting in exercise of its revisional jurisdiction can enter, though we may point 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 suit on condition of depositing Rs. 4000/-. ' In my opinion, even these observations are not in any manner helpful to the opponents because in this case there is no question of the lower Courts order being ' correct or incorrect''. As pointed out earlier, this is not a case merely of an error either on facts or on law. It is a case wherein the decision of the trial Court is found to be quite arbitrary and without any justification whatsoever from the facts of the case.
14. In this view of the matter, I find that the facts of this case fall squarely within the ambit of clauses (a) and (c) of Section 155 of C.P.C. and if that be so, the interference of this court with the order passed by the trial Court would be justified. As pointed out earlier, this is found to be a case in which the applicant is entitled to defend his case unconditionally.
15. All these revision applications are , therefore , allowed and the order of the trail Court imposing condition requiring the applicant to deposit the amount of Rupees 1,000/- in each case, is set aside. The petitioner is given unconditional leave to defend in all the suits. The rule is accordingly made absolute without any order as to costs in each of these cases.
16. Revision allowed.