M.C.TRIVEDI, M.P.THAKKAR - (1.)A question which almost every day enters the door of the Court-room relating to the true scope of sec. 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 Order 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 parties are represented by the same advocates 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 appears 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 sec. 115 of the Civil Procedure Code; (2) That even if a triable issue arises the High Court cannot interfere under sec. 115 notwithstanding the fact that the Trial Judge was wrong in taking the view that there was no triable 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. Messrs. Dalwadi & Co. 9 Gujarat Law Reporter 873 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 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 triable issue or the defence betrays lack of bona fide We do not read the decision in United Industries case as laying down that even if the defence discloses a triable 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 wholly wrong. That is not a matter into which this Court acting in exercise of its revisional 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. 4000/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 suit on condition of depositing Rs. 4000.00. 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 revisional 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 sec. 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.
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