- (1.) THIS revision petition is directed against the order dated 31st of May, 1988, passed by the District Judge, Pali, by which the learned District Judge, Pali, allowed the application under 0. 37 Rr. 3 and 5 of the Code of Civil Procedure filed by the petitioner defendants on certain conditions.
(2.) BRIEFLY stated the facts of the case are that plaintiff Shantilal filed a suit under 0. 37 C. P. C. against Nemichand and Babulal for the recovery of Rs. 12,500/ -. This suit was based on a Khata dated 17. 10. 81 executed by the defendants after settling the whole account and it was admitted that an amount of Rs. 35,000/- is outstanding which would be paid in 14 equal instalments of Rs. 2500/- each. As the defendants have not paid the first five instalments, hence the plaintiff was forced to file the present suit. The notices of this suit were issued to the defendant under 0. 37 r. 2 C. P. C. and the defendants put up their presence and filed the application under 0. 37 R. 3 (5) C. P. C. for leave to defend the suit, this application for leave to defend the suit was contested by the plaintiff and the learned District Judge, Pali by his order dated 31st of May, 1988, decided the application filed by the defendants. According to the District Judge, the defendants have only a plausible case and, therefore, the learned District Judge passed a conditional order and allowed the defendant to defend the suit on the condition hat if the defendants deposit the suit amount of Rs. 12,500/- within 1-1/2 months from the date of order in the court or in the alternative if they furnish an unconditional bank guarantee within 1-1/2 months then they are allowed to defend the suit. In case these conditions are not complied with, the permission granted by he Court will automatically stand cancelled. It is against this order, the present revision petition has been filed. I have heard learned counsel for the parties. Mr. H. C. Jain counsel for the petitioner has submitted that the plaintiff has set up a new case in the plaint from that of the notice dated 7th of June, 1984 which was given by the plaintiff and the reply to which was given by the defendant. According to him in the notice, there is no mention regarding the old account and there is inconsistency between the stand taken in the notice with that of the plaint. According to Shri Jam, heavy burden lies on the plaintiff to prove his case. He has further submitted that the Khata in question is not signed by Babulal, and Nemichand denied the execution of the Khata. The further contention of Mr. Jain is that it is very unnatural that the person will lend Rs. 35000/- without interest and, therefore, it appears from the Khata that forgery has been committed by the plaintiff. Lastly it was contended that no reasons have been given by the court why the unconditional order has not been passed. He further submitted that when a triable case is made out then the permission to defend the suit should be granted unconditionally. In support of this contention Shri Jain has placed reliance on the Judgment of Machalee Eng. and Manf. vs. Basic Eng. Corpn (1), Fatehlal vs. Sunderlal (2), A. C. Traders vs. Nandkishore (3), and Samnidi Kasi Visvanadham vs. Gada Annapurnamm (4 ). Mr. Shishodia, counsel for the respondent, on the other hand submitted that trial court has recorded the finding that only plausible cases has made out and the defendant can be allowed to defend the suit on certain conditions and the findings recorded by the trial court are purely finding of fact and, therefore, no revision is maintainable. Shri Shishodia further submitted that the trial court even compared the signatures of the defendant Nemichand with that of Khata as well as the letter written by his and came to the conclusion that both these documents bear the handwriting of Nemichand. According to Mr. Shishodia, the Court was within its jurisdiction to do so in view of the provisions of S. 73 of the Indian Evidence Act. He also placed reliance on this account on Panchulal vs. Ganeshlal (5) in which it has been held that the court can compare the signatures. He has further invited my attention to the Khata placed on record and the Khata is in the name of Nemichand Babulal Beta, Pota Himmat Lal. He, therefore submitted that under Hindu Law there is a presumption of jointness between the father and the son. Lastly he has contended that no interference is required in the discretion exercised by the trial court. I have given my anxious consideration to the rival submissions made by the parties. Now so far as the arguments regarding the different stand taken in the notice and in the plaint, suffice it to say that this point was never agitated by the defendant before the learned trial court and, therefore, this point is not available to the petitioner. So far as the signing the Khata by Babulal is concerned, though the Khata does not bear the signatures of Babulal but the Khata is joint and is in the name of Nemichand Babulal, the father and the son and it is signed by Nemichand. The question of jointness of Hindu family cannot be decided at this stage. The other point raised by the counsel for the petitioner can also be decided after evidence at an appropriate stage. The findings arrived at by the learned lower court are purely findings of fact and in revisional jurisdiction they cannot be interfered with. The learned trial court after comparing the handwriting and signatures of the defendant clearly opined that the Khata as well as the post card bears the handwriting of defendant Nemichand. The learned trial court after considering the evidence on record gave a specific findings that no triable case has been made out and the defendant has been able to prove only a plausible defence. So far as the point enunciated in the authorities is concerned, there is no dispute in it. It is not in dispute that whenever the defence raises a triable issue, leave must be given and when that is the case, it must be given unconditionally, otherwise the leave may be illusory, but if the Court is of the opinion that the defence is not bonafide then it may impose conditions. This Court in Fatehlal vs. Sunderlal (Supra) after considering the judgment of the Supreme Court in Milkhiram's case (6) and other cases held that while giving leave to defend the suit under 0. 37 R. 3 (5) CPC the Court shall observe the following principles :-- (a) If the Court is of opinion that the case raises a triable issue than leave to defend should ordinarily be granted unconditionally. The question whether the defence raises a triable issue or not has to be ascertained by Court from the pleadings before it and the affidavits of parties. (b) If the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to put by the defendant is frivolous or vexatious it may refuse to leave to defend altogether. (c) In cases where the Court entertains a genuine doubt on the question as to whether the defence is genuine or sham or whether it raises a triable issue or not, the Court may impose conditions in granting leave to defend. The Court would be justified in coming to the conclusion that the issue is not a triable issue when the defence is plausible but is improbable and in such cases it can put the defendant on terms while granting leave to defend. (d) In case where the defendant admits that a part of the amount claimed by the plaintiff is due from him, the Court shall not grant leave to defend the suit unless the amount so admitted to be due is deposited by the defendant in the Court. (e) The Court while granting leave to defend must take care to see that the object of the Rule to assist the expeditious disposal of criminal cases to which the order applies is not defeated. (f) The Court should further take care to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. " From a bare perusal of this judgment, it is clear that the case of the petitioners falls under cl. (2) of the judgment, because the petitioners have been able to show only a plausible case. In this view of the matter, the learned lower court was justified in granting leave to defend the suit on certain conditions but in my view the conditions imposed by the trial court are too harsh which may result in hardship to the petitioner and to some extent it may be illusory even as the petitioner has to arrange and deposit the amount in Court or in Bank so that he may defend the suit. In the facts and circumstances of the case, I think it proper to allow the petitioners to defend the suit on a condition of furnishing a solvent security to the satisfaction of the trial court.
(3.) IN the result, the revision petition filed by the petitioner is allowed in part. The conditions regarding the deposit of the amount or furnishing of the unconditional bank guarantee is set aside and the petitioners are allowed to defend the suit provided they furnish a solvent security to the satisfaction of the trial court after notice to the counsel for the defendant within a period of two months from today. There is no order as to costs. .;